Fair Use!

You can read the opinion here. (If you’re confused, you probably got here without reading the fair-use problem, which you can read here.) Oh, and now you can safely view Scream Icon, along with a better view of the stage (from the very awesome 43(b)log).

The court reached the opposite conclusion Friedman v. Guetta. The judge found Staub’s video background to be a transformative use of Scream Icon, and as we’ve discussed, such a finding is nearly always determinative of the outcome:

In this case, the Court agrees with Defendants that the video backdrop created for East Jesus Nowhere is transformative. The different visual elements Staub added, including graffiti, a brick backdrop, and (especially) the large red cross over the image, considered in connection with the music and lyrics of East Jesus Nowhere, “add[ ] something new, with a further purpose or different character” than Plaintiff’s original work. Campbell, 510 U.S. at 579; see also Sandoval v. New Line Cinema Corp., 973 F. Supp. 409, 413 (S.D.N.Y. 1997) (holding that the defendants’ use of the plaintiff’s photographs in a movie scene was transformative because the “defendants used the visual images created in the plaintiff’s work in furtherance of the creation of a distinct visual aesthetic and overall mood for the moviegoer watching the scene in the killer’s apartment”). The parties do not actually appear to dispute this. Staub testified that he added a large red cross to the image of a torn Scream Icon poster to visually represent the “relationship between organized religion and pain and suffering,” which he felt was consonant with the theme of East Jesus Nowhere. Plaintiff, in contrast, stated that he created Scream Icon to address “themes of youth culture, skateboard culture, [and] insider/outsider culture.”

(Some citations omitted.)

There was also the small problem of Seltzer’s inability to prove that there was a market for Scream Icon, but, really the case turned on transformative use.

Can we square this finding of transformative use with Friedman v. Guetta’s opposite finding? The two cases aren’t quite identical, but they’re very close. In both cases, an artist stumbled across someone else’s work (Staub on the street, Guetta on the internet), decided that it must not be subject to copyright, and made major modifications to the underlying work. Staub’s changes are arguably more significant: he not only painted the red cross on the work, but he placed it in a larger context (though it is by far the most dominant feature), and there was pre-existing graffiti on it. But Guetta’s changes are pretty big, too: he added two new figures to the photograph (or added Run-DMC to a pre-existing old photograph–which is basically the same thing). Staub and Guetta were both trying to use the “attitude” given off by the underlying works–Scream Icon’s horror and pain, Run-DMC’s cool aggression–to make broader points.

I can think of only three major differences between the two uses, in terms of transformation:

  1. Staub is able to articulate what he was trying to do much better than Guetta. We’ve speculated about this before, when “appropriation artist” Richard Prince didn’t get a finding of transformative use, but the born-salesman Jeff Koons did. In this case, it has less to do with the artists’ respective abilities to discuss their art than with the nature of their works. The point that Staub was trying to make was simpler (and less interesting) than Guetta’s: religion is bad. So Staub drew a red cross (that’s the “religion” part) on Scream Icon (that’s the “bad” part). Guetta’s art was subtler. By placing the severe-looking 19th-century couple next to hip-hop icons Run-DMC, Guetta forced us to notice their similarities, and force us question whether Run-DMC’s ‘tude is that cool, or that salt-of-the-earth Americans from a golden age weren’t a little bit scary. (I said it was subtle, not deep, OK?) In a sense, then, Guetta was penalized for being a better artist. (To be fair to Staub, he didn’t have the luxury of being subtle–his art was only going to be onstage for 4 minutes, and it was in the background behind the band everyone was coming to see. No one was going to study contemplatively.)
  2. Staub found Scream Icon out “in nature,” as it were. He initially photographed the whole wall, which he thought looked cool not only because of the posters plastered all over it, but because the posters were weathered and covered in graffiti. In a sense, the “transformation” of Scream Icon had already partially taken place by the time Staub found it.
  3. There was perhaps also a sense that Seltzer hadn’t taken very good “care” of his art, since he was plastering it all over the place–almost like an implied license. This ought to be legally insignificant, or at least, covered by the fourth fair-use factor. If this is the case, then Seltzer was, in effect, being punished for his choice of promoting his art.

There is, perhaps, a more fundamental reason why Seltzer lost: the court thought he had essentially admitted Staub’s work was transformational:

Moreover, in complaining about how Defendants used Scream Icon, Plaintiff effectively concedes that Defendants’ use was transformative. To wit, he testified that Defendants’ use of Scream Icon in the video backdrop for East Jesus Nowhere:

[T]ainted the original message of the image and [ ] made it now synonymous with lyrics, a video, and concert tour that it was not originally intended to be used with….. I make an image, I produce it, I tailor it to my needs, the concept, the content, and then someone comes along, defaces the image, puts a red cross on it. I mean, maliciously devalues the original intent and then shows it to thousands upon thousands of people.

Seltzer Depo. 157:24-158:2; 158:14-19. Thus, as there appears to be no dispute that Defendants added new meaning to Plaintiff’s work, the Court holds that the video backdrop created by Staub using Scream Icon was transformative.

Honestly, Seltzer just sounds angry that (as he sees it) his work has been ripped off and mis-used. But does copyright not invest authors/artists with a right to control the uses of their works? And doesn’t an artist have a right to protest the uses to which her works are put?

Consider this: let’s say a novelist (it could be any novelist, right?), who had lost her copyright to her novel, complained bitterly about a lousy television version of her novel, pointing out (correctly) that it betrayed her original purpose and the basic themes of the novel? Would that mean the TV producers didn’t need obtain a license from the rightholder? Of course not. Why, then, should the court credit Seltzer’s testimony any more, just because he still holds the copyright?

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.