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Grateful Dead Book – Fair Use of Concert PostersWhether a use of copyrighted material, without consent, constitutes copyright infringement or is a fair use, is determined through an analysis of the facts.
A recent case in the United States District Court for the Southern District of New York, Bill Graham Archives LLC v. Dorling Kindersley Limited, has determined that use of thumbnail size visual art images of seven concert posters in a 480 page book, “Grateful Dead: The Illustrated Trip,” is a fair use and not an infringement.
Defendants sought permission to use the images in the book to help make it the “definitive Grateful Dead history.” Defendants had the blessing of Grateful Dead Productions for the project. Plaintiff responded by offering such permission, but only in exchange for significant additional usage rights to create CDs and DVDs from other material controlled by Grateful Dead Productions. That offer was, naturally, refused as was a further offer of a high license fee.
When the book was published with these thumbnail images, plaintiff claimed rights from three to seven of the images used. (There was a dispute as to whether plaintiff controlled the copyright to four of the images.)
Thumbnail Use O.K.
The Court analyzed the fair use factors and concluded that since the book is a biographical work and the use of the thumbnail size images did not supplant the market for the original work, the chronological order of the time line in the book added something new or “transformative” to the purpose or character of the images. Furthermore, this use did not adversely effect the plaintiff’s market for the actual posters.
The Court distinguished Ringgold v. Black Entertainment Television, Inc., which held that use of a work for precisely the purpose for which it was created constituted copyright infringement and not fair use. The difference between the cases was that, in Ringgold, the copyrighted work was used as a set decoration in a church for a television program and bore no relationship to the television program itself. This was the same use (set decoration) for which the original work was created. In this case, the inclusion of the thumbnail size images in the book was not the intended market of the full size posters, and would not compete with or supplant the posters in the marketplace.
The Court further found that defendants had acted in good faith in attempting to acquire usage rights and by informing plaintiff of the intended use. The Court observed that usage licenses are frequently requested even when they are not needed as part of a good faith effort to avoid litigation. Therefore, request for consent where the use could constitute a fair use was not an admission of guilt and did not harm the defendants.
The combination of these factors, according to the Court, on balance, favored fair use. Accordingly, the Court granted summary judgment to defendants and dismissed the complaint.
Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.