A pair of recent decisions—one involving a work of street art used by the band Green Day for an in-concert video; the other about a single line from a William Faulkner novel paraphrased in a Woody Allen film—offer two distinct examples of the important role that copyright’s fair use doctrine plays in today’s popular media.
The Ninth Circuit’s decision in Seltzer v. Green Day, Inc., published this week, considered whether Green Day could be held liable for using the plaintiff’s artwork “Scream Icon”—a drawing of “a screaming, contorted face”—without permission. During a 2009 tour, when the band performed its song “East Jesus Nowhere” a video would play onstage featuring an altered but recognizable version of the plaintiff’s work. The district court found the video to be a fair use and so not infringing. The Ninth Circuit affirmed.
Applying the four fair use factors set out in Section 107 of the Copyright Act, the Ninth Circuit found that Green Day had used the plaintiff’s artwork as “raw material” for its own video, in which the plaintiff’s non-religious drawing was covered by a spray-painted red cross and surrounded by other religious imagery. In this way, the Ninth Circuit said, the band imbued the original work with “new information, new aesthetics, new insights and understandings.” That finding, together with the lack of any harm to the original’s market value, among other considerations, confirmed the district court’s conclusion that the video was a fair use. (Notably, however, the Ninth Circuit reversed the district court’s award of attorneys fees to Green Day, holding that the plaintiff’s infringement claim, though unsuccessful, was not objectively unreasonable.)
Where the video in the Green Day case used the entire “Scream Icon” image, another recent decision, Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., addressed the situation where an accused infringer has used only a small portion of the original. In Woody Allen’s movie Midnight in Paris, a man visiting modern-day Paris is transported back to the 1920s, where he meets legendary figures like Gertrude Stein and Ernest Hemingway. At one point, the character says, “The past is not dead. Actually, it’s not even past. You know who said that? Faulkner, and he was right. And I met him too. I ran into him at a dinner party.” The line is a reference to William Faulkner’s Requiem for a Nun, in which Faulkner famously wrote: “The past is never dead. It’s not even past.”
The Faulkner estate sued for copyright infringement, and the movie studio moved to dismiss. The district court, looking to the same four fair use factors, held that the movie did not infringe Faulkner’s work. Again, the use was found transformative, as the “speaker, time, place, and purpose of the quote” in the movie and in the book, respectively, were “diametrically dissimilar.” The court also noted that the movie took only a “miniscule” amount of Faulkner’s work, and that the plaintiffs had failed to show how the movie’s brief (eight-second) quote could harm the market for the book.
These decisions suggest the continued strength of the fair use defense in U.S. copyright law, particularly in cases where the secondary user has clearly recast the original work in such a way as to change its “message and meaning,” to use the Ninth Circuit’s phrase. This remains true even where the accused work is part of a larger commercial venture, such as a concert tour or a major motion picture. Ultimately, the fair use analysis centers on the two works at issue, largely setting aside the actions and motives of the parties who created them and instead focusing on the relationship between the works themselves.