I love God, and I love copyright law. As a result, one of my longtime academic interests has been the role of copyright law in the creative communications that take place every week in worship services across the country. Specifically, I’ve written (here and here) on whether, and to what extent, the fair use doctrine permits pastors to repurpose secular cultural expressions to make a religious point.
There isn’t much case law on the point, because (fortunately) not many copyright owners have yet felt inclined to harass churches with lawsuits. During a session on copyright law at last month’s AIPLA conference, however, it occurred to me that a court had, in fact, recently said something important on the subject.
In Seltzer v. Green Day, a visual artist accused the band Green Day of infringing his “Scream Icon,” a drawing of a screaming, contorted face. Specifically, the contractor charged with designing the set for Green Day’s concert decided to use a large reproduction of Scream Icon to illustrate the Green Day song “East Jesus Nowhere.” According to the record, the theme of the song is “the hypocrisy of some religious people who preach one thing but act otherwise” and “the violence that is done in the name of religion.” The set designer prominently incorporated Scream Icon into the video presented during the performance, which apparently conveyed quite a bit of violence itself (“images of Jesus Christ appear — and are defaced — several times during the course of the video,” said the court).
By contrast, the court described Scream Icon, by itself, as “a directionless anguished screaming face.” Seltzer originally intended it to “address themes of youth culture, skateboard culture, insider/outsider culture … an iconic reference to a culture and time in Los Angeles when the image was made.” Whatever meaning the original image had, said the court, “it clearly says nothing about religion.”
And that was the key factor driving the court’s decision that Green Day’s use of the image to convey a pointedly anti-religious message was a fair use under the Copyright Act. The band’s display “conveys new information, new aesthetics, new insights and understandings that are plainly distinct from those of the original piece.” Even Seltzer admitted as much, though not as charitably; he said the display “tainted the original message of the image.” The Ninth Circuit characterized its decision as falling squarely within the prevailing “transformative use test” for fair use, in which “an allegedly infringing work is typically viewed as transformative as long as new expressive content or message is apparent. This is so even where — as here — the allegedly infringing work makes few physical changes to the original or fails to comment on the original.” Of course, this analysis only applies to the first of the four fair use factors, but in circuits other than the 7th, that factor is often outcome-determinative.
The court was right that this outcome fits comfortably with the way most courts currently apply the “transformative use” analysis. So, artists like Green Day should continue to feel comfortable that they can likely escape liability for copyright infringement when repurposing religious or areligious artwork to convey an anti-religious message.
By application of the ancient legal principle of “what’s good for the goose is good for the gander,” however, this ruling turns out to be a powerful affirmation of churches’ artistic freedom as well. Probably not a Sunday goes by in which pastors across the country (usually, but not exclusively, in contemporary Christian worship services) don’t incorporate a secular song, video, or other artistic expression into their worship services. (Indeed, Christians have been doing this at least since the Apostle Paul used the Athenians’ altar “to an unknown god” as an illustration of his God’s universality.) Sometimes it’s a popular song whose lyrics convey a different truth when sung and discussed in church instead of being heard on the radio. Sometimes it’s a clip from a movie, TV show, or even a commercial that becomes the perfect metaphor for the pastor’s message, even though it wasn’t intentionally meant to be. And sometimes it’s a work of visual art that, like Scream Icon, just conveys a certain aesthetic, and doesn’t contain any particular message until it’s given one by the context in which it’s presented. In each of those circumstances, the logic of the Seltzer case compels the conclusion that this is very likely to be a fair use.
Of course, this argument comes with caveats. There is no such thing as a safe bet in fair use law; every case is decided on its own facts, and how each factor plays out and weighs against the others is ultimately up to the judge. Fair use does not even come into play until after an infringement lawsuit is filed, so no one really wants to be in the position to make the argument in the first place. And you shouldn’t take anything I say in this article as legal advice.
Nevertheless, all art is borrowing, to some extent. Artists across the country (in churches and otherwise) make cost-benefit decisions every day about whether or not to incorporate a certain pre-existing work into their own expression. Decisions like Seltzer should provide an additional degree of comfort to those people of faith who feel that a particular cultural expression is exactly the raw material they need to communicate ancient Scriptures to today’s audiences in a new and meaningful way.