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December 13, 2011 / Erach Screwvala

Green Day’s Green Day

After convincing a Federal Judge in California that the fair use doctrine protected its use of artist Dereck Seltzer’s work Scream Icon in a video backdrop during its live show, Green Day scores again by prevailing on a claim for attorneys’ fees.

Normally, you can’t get attorneys’ fees for winning a lawsuit, no matter how ridiculous the position taken by the other side. The Copyright Act, however, specifically allows for the winner of a copyright case to recover fees at the discretion of the District Court. Courts typically use these factors in exercising the discretion to award fees: the level of success obtained, frivolousness of the claim or defense, motivation, the need for deterrence, and the objective reasonableness of the claim or defense.

At the outset, let’s recognize that Seltzer — a copyright owner — ends up paying the attorney fees for Green Day — an alleged infringer. This may seem an unjust result. In fact, for a number of years, some courts held that attorneys fees could never be awarded against a party pursuing a claim of infringement. The Supreme Court put a stop to that line of cases in Fogarty v. Fantasy, 510 U.S. 517 (1994), holding that since the Copyright Act makes no distinction between prevailing plaintiffs and prevailing defendants, courts could not establish a different set of rules to award fees for copyright owners and alleged infringers.

The Seltzer Court held that nearly all of these factors weighed in favor of awarding fees.  By prevailing in its fair use defense, the Court held that Green Day had secured a significant victory by making it possible for others to “manipulate and reinterpret street art in the creation of future multimedia compilations.”  The Court further noted that Green Day had prevailed on the merits of each of its claims.  Because Seltzer failed to raise a triable issue of fact and because his positions were contrary to established law and factually unreasonable, the Court held that Seltzer’s claims were objectively unreasonable.


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