<b>Decision of Note: </b>Second Circuit Affirms Posters As Fair Use

The U.S. Court of Appeals for the Second Circuit affirmed that the inclusion, without a license, of thumbnail-size reproductions of concert posters of the Grateful Dead in a book on the band's history constituted copyright fair use. Bill Graham Archives (BGA) v. Dorling Kindersley Ltd. (DK), 05-2514.

BGA, the posters' copyright owner, sued over seven posters in the defendant's book, 'Grateful Dead: The Illustrated Trip.' Looking at the four fair-use factors of Sec. 107 of the Copyright Act, the Second Circuit decided as follows:

'Most important to the court's analysis of the first factor is the 'transformative' nature of the work. ' While there are no categories of presumptively fair use ' courts have frequently afforded fair use protection to the use of copyrighted material in biographies ' DK's purpose in using the copyrighted images at issue in its biography of the Grateful Dead is plainly different from the original purpose for which they were created. ' DK used the minimal image size necessary to accomplish its transformative purpose. Second, DK minimized the expressive value of the reproduced images by combining them with a prominent timeline, textual material, and original graphical artwork, to create a collage of text and images on each page of the book. Overall, DK's layout ensures that the images at issue are employed only to enrich the presentation of the cultural history of the Grateful Dead, not to exploit copyrighted artwork for commercial gain. ' Third, BGA's images constitute an inconsequential portion of Illustrated Trip. ' [And s]ignificantly, DK has not used any of BGA's images in its commercial advertising or in any other way to promote the sale of the book.'

'[On the amount and substantiality of the portion used by the defendants, n]either our court nor any of our sister circuits has ever ruled that the copying of an entire work favors fair use. At the same time, however, courts have concluded that such copying does not necessarily weigh against fair use because copying the entirety of a work is sometimes necessary to make a fair use of the image. ' We conclude that such use by DK is tailored to further its transformative purpose because DK's reduced size reproductions of BGA's images in their entirety displayed the minimal image size and quality necessary to ensure the reader's recognition of the images as historical artifacts of Grateful Dead concert events.'

'[As to the effect of the defendants' use upon the plaintiff's market for or value of the originals,] the parties agree that DK's use of the images did not impact BGA's primary market for the sale of the poster images. ' In a case such as this, a copyright holder cannot prevent others from entering fair use markets. ' Since DK's use of BGA's images falls within a transformative market, BGA does not suffer market harm due to the loss of license fees.'

The U.S. Court of Appeals for the Second Circuit affirmed that the inclusion, without a license, of thumbnail-size reproductions of concert posters of the Grateful Dead in a book on the band's history constituted copyright fair use. Bill Graham Archives (BGA) v. Dorling Kindersley Ltd. (DK), 05-2514.

BGA, the posters' copyright owner, sued over seven posters in the defendant's book, 'Grateful Dead: The Illustrated Trip.' Looking at the four fair-use factors of Sec. 107 of the Copyright Act, the Second Circuit decided as follows:

'Most important to the court's analysis of the first factor is the 'transformative' nature of the work. ' While there are no categories of presumptively fair use ' courts have frequently afforded fair use protection to the use of copyrighted material in biographies ' DK's purpose in using the copyrighted images at issue in its biography of the Grateful Dead is plainly different from the original purpose for which they were created. ' DK used the minimal image size necessary to accomplish its transformative purpose. Second, DK minimized the expressive value of the reproduced images by combining them with a prominent timeline, textual material, and original graphical artwork, to create a collage of text and images on each page of the book. Overall, DK's layout ensures that the images at issue are employed only to enrich the presentation of the cultural history of the Grateful Dead, not to exploit copyrighted artwork for commercial gain. ' Third, BGA's images constitute an inconsequential portion of Illustrated Trip. ' [And s]ignificantly, DK has not used any of BGA's images in its commercial advertising or in any other way to promote the sale of the book.'

'[On the amount and substantiality of the portion used by the defendants, n]either our court nor any of our sister circuits has ever ruled that the copying of an entire work favors fair use. At the same time, however, courts have concluded that such copying does not necessarily weigh against fair use because copying the entirety of a work is sometimes necessary to make a fair use of the image. ' We conclude that such use by DK is tailored to further its transformative purpose because DK's reduced size reproductions of BGA's images in their entirety displayed the minimal image size and quality necessary to ensure the reader's recognition of the images as historical artifacts of Grateful Dead concert events.'

'[As to the effect of the defendants' use upon the plaintiff's market for or value of the originals,] the parties agree that DK's use of the images did not impact BGA's primary market for the sale of the poster images. ' In a case such as this, a copyright holder cannot prevent others from entering fair use markets. ' Since DK's use of BGA's images falls within a transformative market, BGA does not suffer market harm due to the loss of license fees.'