Copyright Infringement Lesson with Green Day, (but no singing).

I’m just a Bill, yes I’m only a Bill . . . That School House rock cartoon was how I learned about the law making process when I was a kid.  It was pretty simplistic but it made a difficult topic understandable. Intellectual Property law is so complicated that people often have a total misunderstanding about how it all works. So here is the first in a series of case studies that I hope will make parts a little easier to understand. Today’s topic, Fair Use and Summary Judgment using Green Day’s recent copyright win as the instrument of education.

Here’s the case.  In 2003, Derek Seltzer, a street artist, created a black and white image called “the Scream” as a mural in a Los Angeles alley.  Now, move forward to 2008.  The Scream is still there; it’s a bit torn up and beat on, but still recognizable.  Enter Roger Staub, a photographer and video/set designer.  One day while wandering around L.A. Staub stumbles upon the Scream and snaps a picture, which he proceeds to file away with thousands of others on his computer.  A couple of years later, Staub gets hired to do video backdrops for Green Day’s 21st Century Breakdown Tour and digs Seltzer’s Scream out of mothballs and uses it as an inspiration for a 4-minute video which will play on a screen behind Green Day for one of the live songs. Staub doesn’t copy it exactly, he makes a whole bunch of changes including color, additional elements and of course, it is a multimedia piece. You can see the two versions below.

Green Day copyright

Seltzer learns about the video, recognizes his work in it, and since he hasn’t given Green Day permission to use it, he sues them for copyright infringement..  Green Day claims they are allowed to use the image, its fair use, and asks that the case be thrown out (an action called a “summary judgment”).  The judge agrees. How can a judge just throw out the case? There is similarity between these images; shouldn’t Seltzer be allowed to have the case go through the legal process? The answer is not necessarily.

How Copyright Infringement Works

Anybody can sue anybody but the person suing (plaintiff) has to have a valid legal reason or claim for doing so; a claim that the courts recognize.  The defendant, in order to stop the lawsuit, uses one of the legally recognized defenses for the plaintiff’s claim and then proves that defense.  Think of it this way; if you kill someone then its murder, unless you can prove self-defense, then you are not guilty.

In this case, the plaintiff’s claim is copyright infringement.  Seltzer is saying that he owns the copyright to the work, which gives him the right to stop anyone from using it without permission. Green Day used the image without permission, so he has the right to sue them for damages.  For Green Day to win, they have to prove one of the copyright infringement defenses.  One of those defenses is fair use.

To prove fair use, the courts weigh 4 factors:

  • the purpose and character of your use
  • the nature of the copyrighted work
  • the amount and substantiality of the portion taken, and
  • the effect of the use upon the potential market.

So Green Day has to make an argument in their favor for each of these at trial.  But, if Green Day can show the judge that these four factors weigh so heavily in their favor that there is little chance of Seltzer being able to persuade a jury in his favor, then the judge will throw the case out.  Green Day made that argument, the judge agreed; case closed.

The Judge reasoned that Staub’s version wasn’t that much like Seltzers.  For example, Staub’s was in color, with lots of additional elements and it was a multimedia piece, not a still image. Staub had “transformed” ( that the important phrase here) the original image into his own work that was unique.  Also, Seltzer’s Scream was such a small part of Staub’s work that a normal everyday person seeing it wouldn’t think that it was similar to Seltzer image. And the last point, which the judge emphasized, was that Green Day didn’t make profit from it; the video was just a background in a live performance. It wasn’t being used on merchandise or anything for sale. Staub got paid a small amount for the work, but Staub wasn’t the one being sued.  Now, if even one of these factors were weighed in favor of Seltzer or if there were facts in dispute that would sway the weighting, then the judge would have to let the case run its course.  Here, the factors weighed so heavily in Green Day’s favor that the judge throw not only threw the case out, but made Seltzer pay Green Day’s legal fees.

So that’s our lesson for today. The points to take away here, besides a little bit if understanding about the court system, is that you can sue anybody you want, but you really need to make sure you have the evidence to back up your claim. Don’t just think that since the your opponent has a lot of money, that they will pay you to go away. That kind of thinking can backfire and cost you in the end.

If you have any questions on this article or any intellectual property issues, send an email to [email protected]  And if you like this article, please post it to your social network by hitting the share button on the left.  

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at or on display at the Emmanuel Fremin Gallery in New York City.

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