Did you hear that a 9th Circuit judge brought an inflatable doll of the figure from the Munch’s painting The Scream into court?

The gesture  if true seems very apropos when hearing arguments on appeal in Dereck Seltzer v. Green Day, Inc. et al, 2:10-cv-02103-PSG-PLA. In the Complaint, filed in 2010, Plaintiff seeks damages for copyright infringement and unfair competition from the music group Green Day, and various individuals and businesses, including DOES 1 through 50 associated with it. Selzer alleges that Defendants violated his secured and exclusive rights by using his image,  Scream Icon, on http://www.greenday.com website and as a backdrop for a music video.

Seltzer, a street artist, created the image in question in 2003. He printed posters and stickers depicting the image and posted them around Los Angeles. In 2008, Green Day’s set designer, Richard Staub, photographed one such poster and with some modification incorporated it into the band’s video as a backdrop as well as used it in other places. In 2011, District Judge Philip Gutierrez granted defendant’s motion for summary judgment on the grounds that Staub’s use of the image was “transformative” under the fair use defense. Selzer appealed.

The judges hearing the arguments on appeal included: Judge Richard Clifton; Judge Stephen Trott and Judge Diarmuid O’Scannlain. It is unclear at this time which of the three brought in the balloon shaped as Munch’s Scream. While their ruling is pending, Selzer hopes that his “status as street art [does] not impact the court’s decision under copyright law.”

Plaintiff is represented by Todd W Bonder and William Nathan Canby, with Rosenfeld Meyer and Susman, LLP.

Attorney for Green Day is Peter Anderson.

 Source: Courthouse News Service; Music Law Seminar.