Thursday, June 8, 2023

Green Day Triumphs In Copyright Case, Use Transformative

Last March, 2010, we posted about a lawsuit by artist Derek Seltzer against Green Day, Warner Bros. Records, and others for misappropriating his copyrighted work, Scream Icon, which Seltzer had put on posters and stickers and displayed on public spaces around Los Angeles.

Well, last month, a federal judge from the Central District of California agreed with Green Day et al., finding that “the different visual elements [their designer] added, including graffiti, a brick backdrop, and (especially) the large red cross over the image, considered in connection with the music and lyrics of East Jesus Nowhere, ‘add something new, with a further purpose or different character’ than Plaintiff’s original work.”

In other words, the secondary use was transformative, and thus fell squarely within fair use. We already know that artists have to be critically aware of how, and why, they appropriate. There is another lesson in this case to be learned by artists; careful what you say about the defendant’s use of your copyrighted work. The quote below from plaintiff Seltzer:

“[T]ainted the original message of the image and […] made it now synonymous with lyrics, a video, and concert tour that it was not originally intended to be used with….. I make an image, I produce it, I tailor it to my needs, the concept, the content, and then someone comes along, defaces the image, puts a red cross on it. I mean, maliciously devalues the original intent and then shows it to thousands upon thousands of people.”

It seems the judge took this as an affirmative explanation by the original artist that Green Day’s appropriation was in fact transformative.

A good day for copyright schizophrenics!

Via the Hollywood Reporter. Background here.


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