Green Day not liable for using artist's work at concerts

By Jonathan Stempel

Wed Aug 7, 2013 1:16pm EDT

n">(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)

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7 Reasons Why Artists Should Skip a BitTorrent 'Media Partnership'

Lately, BitTorrent, Inc. has made a concerted effort to appear "legit", courting both artists and their managers.  It's even managed to become a "tech partner" of the UK Music Managers Forum.  But is partnering with BitTorrent – and its uTorrent client – really a good idea for artists?       

Here are seven reasons that should make them think twice: 

If they use outside songwriters, producers – or the funding of a record label – they need the permission of those people to do it.

 "How Artists Who Support "Piracy" Can Avoid Looking Like Hypocrites"

BitTorrent Inc has launched "BitTorrent Bundles". This involves users being able to download a torrent with a few freebies – but what makes it "advantageous" for artists, according to BitTorrent, is that if they hand over their email addresses they get access to more stuff.  

Getting people to give up their email addresses is never easy, but we suspect people who use BitTorrent are even less likely to want to do so, as anonymity is one of the perks they value.  But even if they, by any luck, agreed to give it up, email bombing has proved to be a pretty inefficient way of promoting a band that people aren’t already fans of.

According to TorrentFreak, the premium torrents appear to be just regular torrent files. There's no DRM or other technical restrictions involved that could prevent users from "sharing" the premium content as they wish, across the internet.  Even the company itself says it simply "expects people to do the right thing".  

However, it’s worth pondering why people who want to "do the right thing" would be using a "service" where over 99% of the content is thought to be infringing. 

BitTorrent’s clients, such as uTorrent is not as efficient as most legal ways of downloading, hence why even experienced BitTorrent users don’t bother with uTorrent unless they want to use it for infringement. Its clunkiness is perhaps also why major licensed music download sites, such as iTunes and Amazon don’t rely on it. 

P2P file-sharing systems are inefficient means of disseminating any form of content that has not already been made extremely popular by other means.  A Limewire developer put it this way, when speaking about BitTorrent and LimeWire: "Here's modern P2P's dirty little secret: It's actually horrible at rare stuff.”

That's why the popular content on BitTorrent is mainly top 40 stuff.

All musicians have heard the slogan "it's promotional" more times than they can count, from people wanting to take advantage of them – and BitTorrent is no exception.  But apart from the attention the acts using it get from numerous tech sites announcing it as an "innovative" way to promote artists, there's little proof that it has lead to success they would otherwise not have seen.  There are even rumours that users are "tricked" into clicking the software that includes music by acts such as Pretty Lights and Counting Crows in order for it to count as a "download" for those artists. 

BitTorrent is used almost exclusively for piracy – matter of fact, only 0.3% of files on it could be confirmed to be legal.  Artists who choose to adopt BitTorrent as their "media partner" would, in effect, be trying to exploit for their own gain the mass piracy of the works of other creators.  It's a moral dilemma some artists may find difficult. 

It can be argued that having your music on services such as Pandora and Spotify is much more useful as a discovery tool. While torrents rely on users to search for the music they want, Pandora's famous algorithm will suggest acts that are similar to those you already like – and Spotify is constantly evolving its discovery tools, including playlists by "trusted filters".  

Image by Craig McInnis, licensed under Creative Commons 2.0.  

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