Bill Graham Archives v. Dorling Kindersley Ltd.
448 F.3d 605 (2006)
Rule of Law:
The reproduction of copyrighted images is a transformative fair use when the images are used in a new context, such as a historical biography, and presented in a way that minimizes their original expressive purpose, such as by significantly reducing their size.
Facts:
- Dorling Kindersley (DK) planned to publish 'Grateful Dead: The Illustrated Trip,' a 480-page biographical coffee table book documenting the band's cultural history.
- The book's format was a continuous timeline combining over 2,000 images with explanatory text in a collage style.
- Bill Graham Archives (BGA) held the copyrights for seven artistic concert posters and tickets related to the Grateful Dead.
- DK initially sought permission from BGA to reproduce the seven images in its book.
- The parties attempted to negotiate a license for the images but were unable to agree on a fee.
- Despite not securing a license, DK published the book, including the seven BGA images in a significantly reduced size as part of the book's historical timeline.
Procedural Posture:
- Bill Graham Archives (BGA) filed a copyright infringement suit against Dorling Kindersley (DK) in the U.S. District Court for the Southern District of New York.
- The parties filed cross-motions for summary judgment.
- The district court granted summary judgment for DK, holding that the use of the images was protected as fair use.
- BGA, as the appellant, appealed the district court's judgment to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does the reproduction of copyrighted concert posters in a biographical book, where the images are significantly reduced in size and placed in a chronological timeline to serve as historical artifacts, constitute fair use under the Copyright Act?
Opinions:
Majority - Restani, J.
Yes, the reproduction constitutes fair use. The court analyzed the four statutory fair use factors and found they weighed in favor of DK. The primary reason was the transformative nature of the use; DK used the concert posters not for their artistic expression but as historical artifacts to document events in the Grateful Dead's timeline. This new purpose was supported by the manner of use: the images were drastically reduced in size, integrated into a collage with text and other graphics, and constituted an inconsequential portion of the 480-page book. While the images were creative works (factor two), this was given limited weight because their historical, rather than expressive, value was being utilized. The court found that copying the entire image (factor three) was reasonable to achieve the transformative purpose of historical identification. Finally, the court concluded there was no harm to the potential market for the original posters (factor four), as DK's use did not substitute for the originals and a copyright holder cannot preemptively block transformative markets by claiming a loss of licensing fees for such uses.
Analysis:
This decision significantly reinforces the doctrine of transformative use as the central inquiry in fair use analysis. It establishes that using a creative work for a historical or biographical purpose, rather than its original aesthetic purpose, can be highly transformative. The ruling clarifies that a secondary user can copy an entire work if necessary for the transformative purpose, particularly when the presentation (e.g., thumbnail size) minimizes the original's expressive value. Furthermore, the case sets an important precedent regarding market harm, holding that a copyright owner cannot prevent fair uses in transformative markets merely by being willing to license the work for that use.
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