Recently, the band Green Day won a copyright infringement suit by asserting the always unpredictable “fair use” defense. Los Angeles based artist David Seltzer brought the lawsuit claiming that Green Day used an original piece of artwork as part of one of their concert backdrops without permission. Seltzer claims, this is and was a misappropriation of his copyrighted work. The Court however, sided with Green Day, finding that their use of the poster was allowed under the fair use exception to Copyright infringement.
Fair use is often misunderstood and can be very complicated in its application to a copyright infringement matter. Using this lawsuit as an example, Green Day was able to assert a fair use defense as the band tailored the poster for their own use by altering the color and contrast of the artwork, adding a brick background, and superimposing a red spray-painted cross over the modified image for use as a backdrop in one of their concerts. In fair use” terminology, the band “transformed” the work for a different purpose than it was originally intended. The more “transformative” a use of another’s copyright is, the greater the availability of fair use protection there is. This is not to say that in every situation where an Artist changes the color scheme of a work of art that the work is transformed and a fair use defense applies. This is to say, if an individual or entity substantially changes a work of art, and additionally uses the changed work of art for a different purpose (such as a concert backdrop and not being shown in an art gallery), there is a possibility of receiving protection under notions of fair use.
Bradley Legal Group, P.A. are Intellectual Property lawyers, Entertainment lawyers and Music lawyers servicing clients in Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Orlando, and Nashville. We also affiliate with entertainment lawyers licensed in New York and Washington, D.C. © 2011 Bradley Legal Group, P.A.