Protecting One Artist’s Expression of Another Artist’s Work: An Analysis of the Intersection of the First Amendment and Copyright Law in Seltzer v. Green Day, Inc.

By Katherine Rippey; Staff Member (Vol. 15)

Oscar Wilde once said, “Art is the most intense mode of individualism that the world has known.” The First Amendment to the United States Constitution is predicated on this concept of individual expression in regards to speech, religion, and even art. This protection of individual consciousness is further protected through copyright laws, where an individual’s work can be protected from duplication in an effort to preserve the creativity and distinct nature of certain products. However, in considering self-expression, it appears contradictory that for your own artistic self-expression you are unable to utilize the works of others as a basis of inspiration.

Courts use the fair use doctrine to settle issues at the cross section of copyright laws and the First Amendment. The fair use doctrine “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” When considering whether the use of another’s work is fair use and may avoid copyright infringement, a court considers four factors:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use on the potential market for or value of the copyrighted work.

Accordingly, the fair use doctrine combines copyright law with the values of the First Amendment by striking an appropriate balance between competing artists rights, where one’s individual expression can be transformed by another’s expression.

Two Artists’ Approach to Art

Seltzer v. Green Day, Inc. uniquely demonstrates this balance between the competing interests of freedom of artistic expression and the desire to protect original ideas. Green Day, a popular Canadian musical group, utilized the art piece Scream Icon as the video background for the song “East Jesus Nowhere” during their worldwide concert tour. Scream Icon is a street art piece by Dereck Seltzer, which was widely displayed along the streets of Los Angeles. Seltzer attributes his artistic success to this piece, and identifies it as a pivotal piece in his career. In the concert, the piece was modified to fit the religious motif of the song. A red cross was added to the image, and the colors were altered to reflect the esthetics of the concert theme. After learning that Green Day was using the modified Scream Icon image, in March 2010 Seltzer filed suit against the rock group for violating the Lanham Act for direct and contributory copyright infringement.

The court applied the fair use doctrine to the situation, which provided for an intersection between the First Amendment and copyright laws. As applied here, the court deemed that the first factor of the fair use doctrine is used to see whether and to what extent the new work is transformative. The more transformative the work, the less weight will be given to the other factors. Here, the court determined that Green Day’s use of Scream Icon was transformative. The alteration of the work, including the additional elements of the cross and color scheme, satisfied the court that the work had been transformed as to distinguish it from its original form. As such, Green Day’s artistic expression, including their music and overall ambience of the concert setting was a protected form of First Amendment expression and did not violate copyright laws.

Correctly Balancing Competing Interests 

As this case demonstrates, there should be a balance between two artists and their forms of expression. The First Amendment affords citizens the right to their own unique expression and this includes artistic expression of both street art and musical acts. The holding in Seltzer v. Green Day, Inc. expands upon this ideal by standing for the notion that artistic expression should not be stifled even when that artist has been influenced by outside inspirations, including another artist. The decision strikes an appropriate balance between competing artists rights, where an artist retains the ability to act upon a stimulus and transform another work into new artistic material. Although this seems potentially unfair, as you are modifying another’s work into your own, this ultimately is the correct way to balance between the competing interests of the First Amendment and copyright law as it allows for artistic expression that is derivative from another artist’s form of expression.

Furthermore, policy implications suggest that this is the proper result as it would be nearly impossible to utilize your First Amendment rights without avoiding copyright infringement if the fair use doctrine were applied differently. Considering future implications, the court system would be burdened with an overflow of litigation if the fair use doctrine failed to protect transformative work. Endless lawsuits would ensue from the notion that the most marginal use of copyrighted material, in a transformed manner, could be stifled. The ability to express oneself through art is a pivotal protection which the First Amendment affords, and it is unrealistic to believe that artists aren’t inspired by others’ work.

For the foregoing reasons, the fair use doctrine is consistent with the First Amendment and should continue to protect artistic expression.