Dereck Seltzer v. Green Day, Inc.

We must decide whether a rock band’s unauthorized use of an artist’s illustration in the video backdrop of its stage show was a “fair use” under copyright law.

I

A

Plaintiff Derek Seltzer is an artist and illustrator. In 2003, he created Scream Icon, a drawing of a screaming, contorted face. Seltzer made copies of Scream Icon, including large posters and smaller prints with adhesive backs, which he has sold and given away. See Appendix A. Many Scream Icon posters have been plastered on walls as street art in Los Angeles and elsewhere. Since then, Seltzer has moved on to other projects, but at times he has used Scream Icon to identify himself and his work’s presence by placing it on advertisements for his gallery appearances, and at some point he licensed it for use in a music video.

Defendant Roger Staub is a photographer and professional set-lighting and video designer. In 2008, Staub photographed a brick wall at the corner of Sunset Boulevard and Gardner Avenue in Los Angeles which was covered in graffiti and posters—including a weathered and torn copy of Scream Icon. See Appendix B. Staub found it “interesting” and saved this picture in his personal…