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Decision of Note: <b>Grateful Dead Photos In Book Is Fair Use</b>
The U.S. District Court for the Southern District of New York decided that incorporating several thumbnail reproductions of concert posters into the book “Grateful Dead: The Illustrated Trip” without a copyright license from the plaintiff archive constituted a fair use. Bill Graham Archives LLC v. Dorling Kindersley Ltd., 03 CV 9507 (GBD).
Looking at the fair-use test of Sec. 107 of the Copyright Act, the district court concluded: “The first factor weighs in favor of fair use since the allegedly infringing work both qualifies as a biography, a presumptively fair use, and does not supplant the market for the original work. … The second factor, the nature of the original work, weighs slightly in favor of the plaintiff since the posters are creative works that have already been published. … However, the third factor, the amount and substantiality of the original taken weighs in favor of defendants [because though 'each piece is reproduced in their entirety, they form only a small part of a book ... and are displayed among hundreds of other images and text']. … Lastly, there is not a substantial effect on the market for the original work since the transformative nature of the use is outside of the ambit of lost licensing opportunities. … On balance, the factors in defendants' favor are controlling … since the purposes of copyright are best served by permitting transformative uses that foster the creation of new works.”
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