{"id":919,"date":"2016-11-30T14:12:03","date_gmt":"2016-11-30T19:12:03","guid":{"rendered":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/?p=919"},"modified":"2016-11-30T14:12:03","modified_gmt":"2016-11-30T19:12:03","slug":"protecting-one-artists-expression-of-another-artists-work-an-analysis-of-the-intersection-of-the-first-amendment-and-copyright-law-in-seltzer-v-green-day-inc","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/protecting-one-artists-expression-of-another-artists-work-an-analysis-of-the-intersection-of-the-first-amendment-and-copyright-law-in-seltzer-v-green-day-inc\/","title":{"rendered":"Protecting One Artist\u2019s Expression of Another Artist’s Work: An Analysis of the Intersection of the First Amendment and Copyright Law in Seltzer v. Green Day, Inc."},"content":{"rendered":"

\"scream-icon\"By Katherine Rippey<\/a>; Staff Member (Vol. 15)<\/p>\n

Oscar Wilde once\u00a0said<\/a>,\u00a0\u201cArt\u00a0is the most intense mode of individualism that the world has known.\u201d\u00a0The First Amendment to the United States Constitution is predicated on this concept of individual expression\u00a0in regards to speech, religion, and even art. This protection of individual consciousness is further protected through copyright laws, where an individual\u2019s 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\u00a0artistic\u00a0self-expression you are unable to utilize the works of others as a basis of inspiration.<\/p>\n

Courts use the fair use doctrine to settle issues at the cross section of copyright laws and the First Amendment.\u00a0The\u00a0fair use doctrine<\/a>\u00a0\u201cpermits\u00a0[and requires]\u00a0courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.\u201d\u00a0When considering whether the use of another\u2019s work is fair use and may avoid copyright infringement, a court considers\u00a0four factors<\/a>:<\/p>\n

    \n
  1. The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;<\/li>\n
  2. The nature of the copyrighted work;<\/li>\n
  3. The amount and substantiality of the portion used in relation to\u00a0the copyrighted work as a whole;\u00a0and<\/li>\n
  4. The effect of the use on the potential market for or value of the copyrighted work.<\/li>\n<\/ol>\n

    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\u2019s individual expression can be transformed by another\u2019s expression.<\/p>\n

    Two Artists\u2019 Approach to Art<\/b><\/p>\n

    Seltzer v. Green Day, Inc.<\/i><\/a>\u00a0uniquely 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\u00a0art\u00a0piece\u00a0Scream Icon<\/i><\/a>\u00a0as the video background\u00a0for the song \u201cEast Jesus Nowhere\u201d\u00a0during their worldwide concert tour.\u00a0Scream Icon<\/i>\u00a0is a\u00a0street art\u00a0piece by Dereck\u00a0Seltzer, 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,\u00a0the piece was modified<\/a>\u00a0to fit the religious motif of the song. A red cross was\u00a0added to the image, and the colors were altered to reflect the esthetics of the concert theme.\u00a0After learning that Green Day was using the modified\u00a0Scream Icon<\/i>\u00a0image, in March 2010 Seltzer filed suit against the rock group\u00a0for violating the Lanham Act for direct and contributory copyright infringement.<\/p>\n

    The court applied the\u00a0fair use doctrine to the situation,\u00a0which 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\u2019s use of\u00a0Scream Icon<\/i>\u00a0was transformative<\/a>. The alteration of the work, including the additional elements of the cross and color scheme, satisfied the\u00a0court\u00a0that the work had been transformed as to distinguish it from its original form. As such,\u00a0Green Day\u2019s artistic expression, including\u00a0their music and overall ambience of the concert setting was a\u00a0protected<\/a>\u00a0form of First Amendment expression\u00a0and did not violate\u00a0copyright laws.<\/p>\n

    Correctly\u00a0<\/b>Balancing Competing Interests\u00a0<\/b><\/p>\n

    As this case demonstrates, there\u00a0should\u00a0be a balance between two artists and their forms of expression. The First Amendment affords citizens the right to their own unique expression\u00a0and this includes\u00a0artistic expression of both street art and musical acts. The holding in\u00a0Seltzer v. Green Day, Inc.<\/i><\/a>\u00a0expands upon this ideal by standing for the notion that artistic expression should not be stifled even when that artist has been influenced by\u00a0outside inspirations,\u00a0including\u00a0another artist.\u00a0The 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\u2019s 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\u00a0artistic expression that is derivative from another artist\u2019s\u00a0form of expression.<\/p>\n

    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.\u00a0Considering 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,\u00a0in a transformed\u00a0manner,\u00a0could be stifled.\u00a0The ability to express oneself through art is a pivotal protection which the First Amendment affords, and it is unrealistic to believe that artists aren\u2019t inspired by others\u2019\u00a0work.<\/p>\n

    For the foregoing reasons, the fair use doctrine is consistent with the First Amendment and should continue to protect artistic expression.<\/p>\n","protected":false},"excerpt":{"rendered":"

    By Katherine Rippey; Staff Member (Vol. 15) Oscar Wilde once\u00a0said,\u00a0\u201cArt\u00a0is the most intense mode of individualism that the world has known.\u201d\u00a0The First Amendment to the United States Constitution is predicated on this concept of individual expression\u00a0in regards to speech, religion, and even art. This protection of individual consciousness is further protected through copyright laws, where …<\/a><\/p>\n","protected":false},"author":10,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[4],"tags":[85,231],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/919"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=919"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/919\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=919"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=919"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=919"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}