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SELTZER v. GREEN DAY, INC.

Nos. 11-56573, 11-57160.

725 F.3d 1170 (2013)

Dereck SELTZER, Plaintiff-Appellant, v. GREEN DAY, INC., a corporation; Green Day Touring, Inc., a corporation; Green Day, a partnership; Billie Joe Armstrong, an individual; Frank Edwin Wright, III, an individual, aka Tre Cool; Michael Ryan Pritchard, an individual, aka Dirnt Mike; Warner Bros. Records, Inc., a corporation; Infect Productions, a partnership; Roger Staub, an individual; Performance Environmental Design, a business entity (form unknown), Defendants-Appellees. Dereck Seltzer, Plaintiff-Appellant, v. Green Day, Inc., a corporation; Green Day Touring, Inc., a corporation; Green Day, a partnership; Billie Joe Armstrong, an individual; Frank Edwin Wright, III, an individual, aka Tre Cool; Michael Ryan Pritchard, an individual, aka Dirnt Mike; Warner Bros. Records, Inc., a corporation; Infect Productions, a partnership; Roger Staub, an individual; Performance Environmental Design, a business entity (form unknown), Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Filed August 7, 2013.

Attorney(s) appearing for the Case

William Nathan Canby , Rosenfeld, Meyer & Susman, LLP, Beverly Hills, CA argued the cause and filed a brief for the appellant. With him on the briefs were Todd W. Bonder and Ryan M. Lapine , Rosenfeld, Meyer & Susman, LLP, Beverly Hills, CA.

Peter J. Anderson , Law Offices of Peter J. Anderson, a P.C., Santa Monica, CA, for appellees Green Day Touring, Inc., Green Day, Inc., Billie Joe Armstrong, Frank Edwin Wright, III, Michael Pritchard and Warner Bros. Records Inc., argued the cause and filed a brief for appellees. With him on the briefs were Bruce Isaacs, Wyman & Isaacs, LLP, Los Angeles, CA, for appellee Roger Staub, dba Infect Productions, and Lee S. Brenner and Keri E. Campbell, Kelley Drye & Warren LLP, Los Angeles, CA, for appellee Performance Environment Design Group, LLC.

Before: DIARMUID F. O'SCANNLAIN, STEPHEN S. TROTT, and RICHARD R. CLIFTON, Circuit Judges.

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide whether a rock band's unauthorized use of an artist's illustration in the video backdrop of its stage show was a "fair use" under copyright law.

I

A

Plaintiff Derek Seltzer is an artist and illustrator. In 2003, he created Scream Icon, a drawing of a screaming, contorted face. Seltzer made copies of Scream Icon, including large posters and smaller prints with adhesive...

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