Bill Graham vs. Grateful Dead
A recent case out of the Southern District of New York hits close to home - Bill Graham Archives, LLC v. Dorling Kindersley Limited,Download file. File it under "warm relations" in the Bay Area music community. It is a fair use case in which the publisher of the book titled "Grateful Dead: The Illustrated Trip" was found not liable for copyright infringement for using some of the Bill Graham Archive's concert posters in the book. Seven concert posters were used in the book as small "thumbnail" reproductions, to commemorate concert events as part of a timeline throughout the book of Grateful Dead history.
Grateful Dead Productions (GDP) tried to clear the posters. The first response from Bill Graham Archives (BGA) was that it would grant permission if GDP would allow it to create CDs and DVDs out of its archived recordings of Dead concerts. This was rejected, the publisher then contacted BGA, and the second response was that they were "open to negotiating" a licensing agreement within "industry standards" based on quantity of books being printed.
The publisher went off to try to find another way to clear the rights, but ended up with several posters still needing clearance. When the publisher contacted BGA again, BGA offered to clear the images for $2500 each. This offer was not taken, and BGA threatened "the most aggressive action possible."
All of this apparently rubbed District Judge George Daniels the wrong way. In assessing the fair use factors under Section 107 of the Copyright Act, he took into account a factor not enumerated in the statute - the good faith of the defendant in seeking a license - and said this weighed in favor of the defendants in the equitable balance of fair use.
With respect to the four fair use factors under the statute, the Court held that "On balance, the factors in defendants' favor are controlling in this instance since the purposes of copyright are best served by permitting transformative uses that foster the creation of new works."
The first factor - nature of the use - weighed in favor of the publisher because the book is a biography, and the use of the works was "transformative" in that they served to illustrate the historical chronology of the band.
The second factor - nature of the original work - weighed in favor of BGA, because the posters are creative artwork, but less so because they were previously published.
The third factor - amount of the original work taken - weighed in favor of the defendants, even though the entire posters were used. The Court said that taking the entire image was not the "heart" of the work because of the diminutive reproduction, and that the use was reasonable in light of the 480 page book.
The fourth factor - effect on the market for the original - weighed in favor of the defendant, because the transformative use was "outside of the ambit of lost licensing opportunities." Because of the transformative use, the Court reasoned that this was not a licensing market to be reserved exclusively to the copyright holder, in the same way that a copyright owner could not preclude parodies by licensing them.
We'll assume an appeal will be taken on this, and will wait to see what the Second Circuit has to say.
Cathy Kirkman is a partner at Wilson Sonsini Goodrich & Rosati in Palo Alto, California. Her practice focuses on intellectual