Fair Use Under Copyright Law Includes Green Day’s Unauthorized Use Of Artist’s Illustration In Concerts.

An artist and illustrator created Scream Icon, a drawing of a screaming, contorted face. A defendant is a photographer who photographed a brick wall on Sunset Blvd. covered with graffiti and posters, including a weathered and torn copy of Scream Icon. That defendant was later engaged to create the lighting, effects and video backdrops for a rock band concert. One of the backdrops created for a song consisted of a four-minute video showing a brick alleyway covered in graffiti depicting Scream Icon. The artist brought an action for copyright infringement, and the federal district court granted summary judgment to the defendants. Finding the use of Scream Icon was “transformative and not overly commercial,” the Ninth Circuit concluded it was fair use and affirmed judgment in favor of the defendants, but vacated an award of attorney fees. Seltzer v. Green Day, Inc. (Ninth Cir.; August 7, 2013) (Case No.’s 11-56573, 11-57160).