By Jonathan Stempel
(Reuters) - Dereck Seltzer wasn't happy when he learned that Green Day used his artwork without permission as a video backdrop at its concerts. But a federal appeals court on Wednesday said the popular rock band didn't violate his rights.
The decision by the 9th U.S. Circuit Court of Appeals in California, in what it called a "close and difficult case," can make it easier for performers to incorporate works of art to enhance the experience of concert fans, so long as they don't simply copy the artwork or diminish its value.
Seltzer, a Los Angeles illustrator, in 2003 created "Scream Icon," an abstract image of an anguished, contorted face that has been used on posters and plastered on walls as street art.
During a 2009 tour, Green Day, whose lead singer is Billie Joe Armstrong and which has sold more than 70 million records, used a version of the artwork covered by a red "spray-painted" cross in a video backdrop for its song "East Jesus Nowhere."
The version had been adapted from a photo of a weathered and torn copy of Seltzer's work posted on a brick wall on a corner of Sunset Boulevard in Los Angeles.
Seltzer sued after rejecting a proposed settlement that included concert tickets. But a federal district judge in Los Angeles in 2011 rejected his claims of copyright infringement and violations of the Lanham Act, a federal trademark law.
In upholding that decision, Circuit Judge Diarmuid O'Scannlain wrote for the 9th Circuit that Green Day's use of "Scream Icon" was fair, and was "transformative and not overly commercial" despite making few alterations.
"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," O'Scannlain wrote for a three-judge panel.
O'Scannlain said Seltzer's testimony that the value of his work wasn't affected, and the absence of the work from Green Day merchandise and promotional material, also weighed in the band's favor.
The 9th Circuit did overturn a $201,000 award of attorney's fees to Green Day. Even though Seltzer lost, it said, he had not been "objectively unreasonable" by suing.
Nathan Canby, a lawyer at Rosenfeld, Meyer & Susman representing Seltzer, did not immediately respond to requests for comment. Peter Anderson, a lawyer for Green Day, did not immediately respond to similar requests.
The case is Seltzer v Green Day Inc et al, 9th U.S. Circuit Court of Appeals, No. 11-56573.
(Reporting by Jonathan Stempel in New York; Editing by Vicki Allen)