Call Now To Get Started (615) 734-1188 [email protected]

Can Green Day Exit Through the Gift Shop?

Are you ready for another installment of Is it Fair Use?, the fast-paced, action-packed game in which I give you a fact pattern, and you take a blind stab at whether the court found or didn’t find fair use. Today’s installment is brought to you by Green Day, and also by the Oscar-nominated documentary, Exit Through the Gift Shop.

Our story begins with the artist Los Angeles artist Derek Seltzer, who created a work of art, which he called, Scream Icon. I’d show it to you, but it’s impossible to find an image that isn’t part of a story that gives away the ending! It consists of a black-and-white portrait of a fanged man in a rictus of a huge, well, scream. AAAAAAARG! Sort of like that.

Seltzer put this image onto posters and stickers, and then posted those images on walls, telephone poles and what-not around town. It doesn’t appear from the opinion that Seltzer had much success selling copies of Scream Icon, though he did license it once to a rock band for use in a music video.

One day, another artist, Roger Staub, happened across what he thought was a pretty cool sight: a wall plastered with lots of weathered-looking posters, including Scream Icon, covered with graffiti. He took a digital picture of the wall.

About a year later, Staub was asked by the rock band Green Day to create a video backdrop for its upcoming concert tour. The idea was to make different video backdrops for different songs. One of those songs was “East Jesus Nowhere,” a song about “the hypocrisy of religions.” In testimony, Staub described the video backdrop like this:

The video backdrop I prepared for East Jesus Nowhere has hundreds of different graphical elements. There is a brick wall, with doors and windows, depicting the exterior of an urban building adjacent to a sidewalk or alley. The video lasts 4 minutes and 13 seconds and is time lapse over three nights and days, starting in darkness, with lights on over a door and portions of the wall, then moving to daylight, back to night, etc. In the night portions of the video, the headlights of passing cars as well as the emergency lights of police cars or ambulances play against the wall. During the video, people appear and graffiti and street art appear on the wall and change, all at a speeded-up rate. The street art includes stencils and posters, including religious images such as Jesus Christ. For example, one image of Jesus Christ is posted on the wall and, in time lapse, his eyes are spray-painted over and a grenade and bullets are added. As another example, a stenciled image of Jesus Christ appears on the wall and then, in time lapse, tears are added. The street art also includes images of men with weapons and two men fighting, one with a cross and the other with a crescent moon and star. There are also various visual effects, such as slashing lines that run across the wall from time to time.

One of the dominant images in this video backdrop was the weathered, graffiti-covered Scream Icon poster, which Staub had digitally taken from his photograph. He didn’t seem to regard the poster as having any intrinsic artistic value, only that he wanted to associate organized religion with anguish and suffering, which was presumably conveyed by Scream Icon. As Staub testified:

To create this composite image of a red cross and street art depicting a face in anguish, I included a portion of my 2008 photograph (Exhibit 9) of the sealed- off door covered with graffiti and posters at Sunset and Gardner. The portion of my 2008 photograph that I used in creating the composite image depicts a weathered poster, with its top right corner torn off and its left corner peeling off the wall, marked with graffiti, showing a portion of a face with an open mouth that appears to be grimacing or possibly screaming. To create this composite image, I digitally removed the portion of my photograph depicting this torn poster, I changed the contrast and color of that portion of my photograph using Adobe Photoshop and I masked out a part of that portion of my photograph. I placed that modified portion of my photograph over the image of a dark black brick wall background. To complete the composite image I created and further my visual representation of the mood, tone and theme of East Jesus Nowhere, I then added the prominent image of a broad, red cross that appears to have been spray-painted over the modified portion of my photograph. The resulting composite image I created of a large red cross “spray-painted” over a torn and weathered piece of street art visually and dramatically associates organized religion — symbolized by the prominent red cross — with anguish or suffering.

Green Day, did, in fact, use this video backdrop for “East Jesus Nowhere” on its 2009 concert tour. Here’s a very grainy picture of the video backgroundScream Icon is that big picture in the middle. Seltzer got wind of this use and demanded a royalty. When none was forthcoming, he filed suit against Green Day, its members, Staub, and a bunch of other people, for copyright infringement, among several other claims.

The defendants moved earlier this year for summary judgment on grounds that Staub’s use of Scream Icon was a fair use. How do you think the judge ruled?

An Contemplative Interlude: Run-DMC and Banksy

Before you answer, consider this similar “artist-on-artist” fair use case from earlier this year, from the same court (but different judge). In the Oscar®-nominated documentary Exit Through the Gift Shop, British artist Banksy (also the director of the film) convinces a shop-keeper obsessed with street art, Thierry Guetta, to put on an art show. Guetta turns himself into “Dr. Brainwash,” creates several works of street art and organizes the show (though, in the end, Banksy has to save the day). The show is a huge success, with Guetta netting over a $1 million.

Several of the works from the art show featured an iconic image of the old rap group, Run-DMC, wearing stetsons and standing in the much-copied “B-Boy Stance”. For example, in the most important one, Guetta created spliced together Run-DMC with a severe-looking 19th-century couple, to make a kind of bizarre family portrait. Definitely the kind of work that makes you do a double-take.*

* Note: There were actually four works at issue in this case, but I’m focusing on this one because the fair-use argument is much stronger than for the others. With the other three works, all Guetta did was, essentially, change the media without making any changes or additions to the underlying work.

The problem, of course, was that someone had taken that photograph of Run-DMC, and that someone still had the copyright in that photograph. This photographer, Glen Friedman, had previously published the photograph in a book (the title of which is not safe for small children). He sued Guetta* for copyright infringement. Guetta filed a motion for summary judgment on grounds that his uses of the Run-DMC photograph was a fair use. Friedman filed a motion for summary judgment of his own, seeking a judgment of infringement.

* There was some question that Guetta was, essentially, a Banksy creation, but it appears that Guetta is for real. If Banksy, not Guetta, were the real creator of the works, Guetta would certainly have sought to avoid liability by showing that Banksy was the real artist.

The court held that Guetta’s use of the Run-DMC photograph was NOT a fair use. Remember that fair-use cases like this nearly always turn on whether the defendant’s use was “transformative.” In Guetta’s case, the court found that his use was not transformative, in large part because Guetta and Friedman are both visual artists. The court added, “Although the statements made by those respective artworks and the mediums by which those respective statements were made differ, the use itself is not so distinct as to render [Guetta’s] use a transformation of [Friedman’s] copyright.”*

* There is one obvious distinction between Friedman and Seltzer: Friedman has had much more success selling copies of his artwork than Seltzer.

Review the fair-use factors (but focus on the transformative-use sub-factor), make your guess, and click here to see if you’re right.

Rick Sanders

Rick is currently General Counsel for Software Freedom Conservancy. Previously, he has been practicing law as an intellectual-property litigator since 2000.