In 2003, artist and illustrator Derek Seltzer created the Scream Icon, an image of a contorted, screaming face that he used on posters around Los Angeles. Roger Staub, a photographer and video designer, took a picture of a brick wall that included a Scream Icon poster. Several years later, Staub was hired to create video backdrops for a Green Day concert tour. In one four-minute video, Staub incorporated an altered version of the Scream Icon along with other street art. In response, Seltzer registered copyright in the Scream Icon and sent a cease-and-desist letter to the band. Green Day stopped using the video backdrop.

In 2010, Seltzer sued Green Day (among others, including the individual members of the band, Roger Staub, Warner Bros. Records, Performance Environmental Design, and other business entities, collectively with Green Day, the "Green Day defendants"), for copyright infringement, among other claims. The band claimed fair use and successfully moved for summary judgment in front of the district court. Seltzer appealed.

The Ninth Circuit affirmed, concluding that Green Day’s incorporation of the Scream Icon in its backdrops was fair use. In reaching this conclusion, the appellate court first found that Green Day’s use of the original work was transformative because the band used the graffiti as “raw material” in construction of a video that was not a simple restatement of the original. In addition, the appellate court held that the Green Day defendants’ modifications conveyed new information and aesthetics distinct from the original work. The appellate court also found that the Green Day defendants’ use of Scream Icon was not more than necessary for its transformative purposes nor harmful to the market value of the original. Thus, on balance, the Ninth Circuit concluded that the band’s adaptation constituted fair use and affirmed the district court’s judgment.

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