Intellectual Property Law

In a ruling giving heart to fair use advocates, the Second Circuit recently found that the defendant?s unauthorized use of entire images of seven Grateful Dead concert posters and tickets within ?Illustrated Trip,? a 480-page biography of the Dead, constituted fair use, and not copyright infringement.  In Bill Graham Archives v. Dorling Kindersley Ltd., et al., 05-2514-cv (2d Cir. May 9, 2006), the court considered in turn each of the four factors considered in the fair use analysis and enumerated in 17 U.S.C. §107: ?the purpose and character of the use;? (2) ?the nature of the copyrighted work;? (3) ?the amount and substantiality of the portion used in relation to the copyrighted work as a whole;? and (4) ?the effect of the use upon the potential market for or value of the copyrighted work.? 

Although the court found that two of the factors cut in favor of the plaintiff and two in favor of the defendant, the weight given to the plaintiff?s two factors was limited.  First, the court found that defendant Dorling Kindersley?s (?DK?) use of the concert poster and ticket images in the biography as ?historical artifacts of Grateful Dead performances [wa]s transformatively different? from the images? original dual purpose of artistic expression and promotion.  Id. at 22.  The fourth factor, effect of the unauthorized use upon the potential market for the images, also weighed in favor of DK where the use of the reduced images in the biography was transformatively different.  Id. at 20. 

Finding that the creative nature of the ticket and concert images favored the plaintiff, the court minimized that factor because DK did not exploit the expressive value of the images where they were shown in greatly reduced size along a timeline in the biography, as part of a compilation.  And finally, the fact that the images were copied in their entirety also did not weigh against fair use since the ticket and poster images were reduced in size.  Id. at 22

So, the biography ?Illustrated Trip? can keep on truckin?, which it apparently needs to do.  The Second Circuit noted in a footnote that DK?s use of the images did not impair plaintiff?s traditional market for licenses to the images.  ?To the contrary, had the book [Illustrated Trip] been commercially successful ? which it was not ? it might have garnered interest in the original images in full size.?  Id. at 20 n.5.  Ouch.

Today's Blogger:  Nan Joesten