The band are not liable for using LA artist's work in their live shows
Los Angeles illustrator Dereck Seltzer designed the image Scream Icon, which features an “anguished, contorted face” in 2003. It has appeared on posters and street art, including on a brick wall on LA’s Sunset Boulevard, from where Green Day adapted the image for use in a video backdrop during their 2009 tour.
Using the artwork during the song ‘East Jesus Nowhere’, the band made few changes to the image, save for covering it with a red spray-painted cross. Despite this, the ninth US Circuit Court Of Appeals In California rejected Seltzer’s claims that the punk rock band had used his artwork without his permission. Calling it a “close and difficult case”, Circuit Judge Diarmuid O’Scannlain said their use of the image was “transformative and not overly commercial”.
“With the spray-painted cross, in the context of a song about the hypocrisy of religion, surrounded by religious iconography, [the] video backdrop using Scream Icon conveys new information, new aesthetics, new insights and understandings that are plainly distinct from those of the original piece,” he wrote of his decision.
The fact that the image was not present in any of Green Day’s merchandise or promotional material and Seltzer’s own testimony that the value of his work was not affected weighed in the band’s favour, according to O’Scannlain.
The decision could now make it easier for performers to incorporate artwork into their live shows, provided artwork is not copied or has its value diminished.