Decision of Note: <b>Grateful Dead Photos In Book Is Fair Use</b>

The U.S. District Court for the Southern District of New York decided that incorporating several thumbnail reproductions of concert posters into the book “Grateful Dead: The Illustrated Trip” without a copyright license from the plaintiff archive constituted a fair use. Bill Graham Archives LLC v. Dorling Kindersley Ltd., 03 CV 9507 (GBD).

Looking at the fair-use test of Sec. 107 of the Copyright Act, the district court concluded: “The first factor weighs in favor of fair use since the allegedly infringing work both qualifies as a biography, a presumptively fair use, and does not supplant the market for the original work. … The second factor, the nature of the original work, weighs slightly in favor of the plaintiff since the posters are creative works that have already been published. … However, the third factor, the amount and substantiality of the original taken weighs in favor of defendants [because though 'each piece is reproduced in their entirety, they form only a small part of a book ... and are displayed among hundreds of other images and text']. … Lastly, there is not a substantial effect on the market for the original work since the transformative nature of the use is outside of the ambit of lost licensing opportunities. … On balance, the factors in defendants' favor are controlling … since the purposes of copyright are best served by permitting transformative uses that foster the creation of new works.”

The U.S. District Court for the Southern District of New York decided that incorporating several thumbnail reproductions of concert posters into the book “Grateful Dead: The Illustrated Trip” without a copyright license from the plaintiff archive constituted a fair use. Bill Graham Archives LLC v. Dorling Kindersley Ltd., 03 CV 9507 (GBD).

Looking at the fair-use test of Sec. 107 of the Copyright Act, the district court concluded: “The first factor weighs in favor of fair use since the allegedly infringing work both qualifies as a biography, a presumptively fair use, and does not supplant the market for the original work. … The second factor, the nature of the original work, weighs slightly in favor of the plaintiff since the posters are creative works that have already been published. … However, the third factor, the amount and substantiality of the original taken weighs in favor of defendants [because though 'each piece is reproduced in their entirety, they form only a small part of a book ... and are displayed among hundreds of other images and text']. … Lastly, there is not a substantial effect on the market for the original work since the transformative nature of the use is outside of the ambit of lost licensing opportunities. … On balance, the factors in defendants' favor are controlling … since the purposes of copyright are best served by permitting transformative uses that foster the creation of new works.”