Green Day’s unauthorized use of an illustration, Scream Icon, by Derek Seltzer, in a video backdrop for its 21st Century Breakdown World Tour (including here at the 2009 MTV awards) was determined by the 9th Circuit of the US Court of Appeals to be fair use and was not copyright infringement (click here for the opinion).
Fair use of copyrighted works is not copyright infringement. Whether a use is “fair” depends on (1) the purpose and character of the use, including whether the use is commercial or for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion of the copyrighted work used; and (4) the effect of the use on the value or potential value of the copyrighted work.
Based on the above, the court ruled Green Day’s use of Scream Icon was fair use because the use of Scream Icon was transformative in that it was one component of a 4 minute video backdrop that showed numerous images of graffiti art and Jesus Christ. Scream Icon was a previously published work, so it was more likely to qualify as fair use. Finally, Derek Seltzer acknowledged the value of Scream Icon had been unchanged by Green Day’s use, and Green Day had not used Scream Icon in any merchandise or promotional materials.
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