Thank copyright law for bringing Green Day back to its punk roots, even though the band has sold well over 70 million records, its members helped conceive a Broadway opera, the lead singer is a family man, and the drummer still goes by the somewhat antiquated stage handle, "Tre Cool."
Today Green Day clinched a win in a snarly copyright case at the Ninth Circuit Court of Appeals, after a three-judge panel absolved the band of charges that it unfairly filched intellectual property from Los Angeles artist Dereck Seltzer.
The art in question was Seltzer's Scream Icon, an illustration of a contorted, wide-eyed, incisor-baring, screaming face that doesn't exactly pass the Turing Test, though it's definitely unsettling. Green Day's video designer, Roger Staub, used the image in a video backdrop for "East Jesus Nowhere," a song meant to evoke "the hypocrisy of people who preach one but act otherwise..." as Staub said in a court filing. (Absent the screaming head image, it's an anthemic pop track with a jaunty swing rhythm -- the kind of stuff that's ensured Green Day's longevity since Dookie.)
Whether the song's mood exactly aligns with the image might be a point of aesthetic debate, but Staub evidently found a way to intertwine them. Or rather, he accidentally intertwined them, after filming a graffitied brick wall on Sunset Boulevard where a weathered copy of Scream Icon hung amid other posters. Seltzer's piece wasn't the central motif per se -- it sat amid several wilting images of Jesus Christ that got defaced throughout the video -- but it dominates the center frame in several shots.
Green Day repurposed the brick wall montage for 70 concerts during its 2009 tour, and deployed it again for the MTV Video Music Awards, at which point Seltzer -- who was evidently watching -- got wind that his work had been pilfered. He sued the band in March of 2010, alleging copyright infringement.
Thus began a legal skirmish that concluded when Green Day convinced both a district court and the Ninth Circuit that its reconception of Scream Icon constituted fair use -- both because it altered the art's expressive purpose, and because it wasn't overly commercial, according to the appeals judges. They also contended -- and both courts agreed -- that because Scream Icon had already been widely disseminated as street art, Green Day hadn't diluted its value by making a video. Furthermore Seltzer hadn't trademarked the art.
That's a small victory for artists who want to use found work without having to worry about stepping on intellectual property rights. Or it's a big, somewhat cynical victory for commercial pop juggernauts whose members want to freely steal from street artists.
But the Ninth Circuit judges also ruled that Seltzer hadn't acted unreasonably in bringing the complaint, since Green Day's transformation of the work was far from obvious. Thus, they said, the band would have to pay its own attorneys' fees.
Fortunately that's a drop in the bucket after 70 million albums.