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Use of Images of Grateful Dead Concert Posters in Book Held to be Fair Use


The Second Circuit Court of Appeals ruled, in Bill Graham Archives v. Dorling Kindersley Limited, 05-2514, F.3d, 2006 WL 1236790 (2d Cir., May 9, 2006), that the use of seven images of Grateful Dead concert posters displayed in significantly reduced size in a 480-page 'coffee table' book about the band was fair use and not copyright infringement.

The Dorling Kindersely book, Grateful Dead: The Illustrated Trip, is a biographical work documenting the 30-year history of the Grateful Dead. The court concluded that the publisher's use of the disputed images fulfilled 'DK's transformative purpose of enhancing the biographical information in [the book], a purpose separate and distinct from the original artistic and promotional purpose for which the images were created.' The court rejected BGA's 'limited interpretation of transformative use,' including its claim that each image required 'comment or criticism related to the artistic nature of the image.'

The transformative nature of the use was strengthened, the court found, by the manner in which the publisher displayed the images, in significantly reduced size combined with a prominent timeline and other material creating '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.' The poster images were reduced substantially in size – large enough to convey 'the historical significance of the posters' but 'inadequate to offer more than a glimpse of their expressive value.' Moreover, the BGA images were an 'inconsequential portion' of DK's book and not used in commercial advertising or sales promotion.

Richard Dannay and Thomas Kjellberg of Cowan, Liebowitz & Latman represented the publisher Dorling Kindersley and the other defendants-appellees. The decision was the subject of a front-page article in the May 15, 2006 issue of the New York Law Journal.

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