Second Circuit Decides Fair Use Case Regarding Reduced Copies Of Images

Bill Graham Archives v. Dorling Kindersley Limited (2nd Cir. May 9, 2006)

“This appeal concerns the scope of copyright protection afford artistic concert posters reproduced in reduced size in a biography of the musical group the Grateful Dead.” The Defendant Dorling Kindersley Limited (“DK”) had published a 480-page coffee table biography of the Grateful Dead that used seven copyrighted images owned by the Bill Graham Archives (“BGA”). While DK initially attempted to gain a license, DK eventually published its biography without permission to use the BGA images. The appellant, having lost in the lower court, sought to overturn the judgment by primarily arguing that, “as a matter of law merely placing poster images along a timeline is not a transformative use.” Since there were no genuine issues of material fact to discuss, the court looked at this argument, as well as others, and reviewed de novo the district court’s legal conclusions favoring a Section 107 fair use exception to BGA’s exclusive rights.

First Factor Analysis: “[T]he purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;”

BGA “challenged the district court’s strong presumption in favor of fair use based on the biographal nature of [DK’s book],” by arguing that the use of the protected images by DK was insufficient to merit transformative use. The position of BGA was that “merely placing poster images along a timeline is not a transformative use,” as transformative use requires “that each reproduced image should have been accompanied by comment or criticism related to the artistic nature of the image.”

The appeals court disagreed with BGA’s “limited” interpretation of transformative use. Citing Campbell v. Acuff-Rose Music, the Second Circuit first stated that, “[w]hile there are no categories of presumptively fair use, courts have frequently afforded fair use protection to the use of copyrighted material in biographies, recognizing such works as historic scholarship, criticism, and comment that require incorporation of original source material for optimum treatment of their subjects.” Nor did the Second Circuit consider it relevant that biographical subject concerned pop culture “rather than some other area of human endeavor.”

Further, the Second circuit agreed with the district court that DK’s use of the protected images was transformative:

” . . . DK's purpose in using the copyrighted images at issue in its biography of the Grateful Dead is plainly different from the original purpose for which they were created. Originally, each of BGA's images fulfilled the dual purposes of artistic expression and promotion. The posters were apparently widely distributed to generate public interest in the Grateful Dead and to convey information to a large number people about the band's forthcoming concerts. In contrast, DK used each of BGA's images as historical artifacts to document and represent the actual occurrence of Grateful Dead concert events featured on Illustrated Trip 's timeline.
In some instances, it is readily apparent that DK's image display enhances the reader's understanding of the biographical text. In other instances, the link between image and text is less obvious; nevertheless, the images still serve as historical artifacts graphically representing the fact of significant Grateful Dead concert events selected by the Illustrated Trip's author for inclusion in the book's timeline. We conclude that both types of uses fulfill DK's transformative purpose of enhancing the biographical information in Illustrated Trip, a purpose separate and distinct from the original artistic and promotional purpose for which the images were created.

* * *

In sum, because DK's use of the disputed images is transformative both when accompanied by referencing commentary and when standing alone, we agree with the district court that DK was not required to discuss the artistic merits of the images to satisfy this first factor of fair use analysis.

The Second Circuit found further support for their position in the manner that DK displayed the images:

(1) Citing Kelly v. Arriba Soft Corp., the Second Circuit first noted that “DK significantly reduced the size of the reproductions” and that “DK used the minimal image size necessary to accomplish its transformative purpose.”

(2) Second, the appeals court held that “DK minimized the expressive value of the reproduced images by combining them with a prominent timeline, textual material, and original graphical artwork, to create a collage of text and images on each page of the book.” Consequently, the overall effect of “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.”

(3) In addition, while the appeals court acknowledged that the Second Circuit has counseled against “considering the percentage the allegedly infringing work comprises of the copyrighted work in conducting third-factor fair use analysis,” it did not feel that challenged such a consideration in first-factor fair use analysis. After reviewing the facts, the Second Circuit declared that “BGA's images constitute an inconsequential portion of [DK’s Grateful Dead biography]” and they were “aware of no case where such insigificant taking was found to be an unfair use of original materials.”

(4) Finally, on the commercial nature of the Grateful Dead biography, the appeals court, citing Harper & Row, Publishers, Inc. v. Nation Enters., denoted that “[t]he crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.” Since “DK has not used any of BGA's images in its commercial advertising or in any other way to promote the sale of the book,” the appeals court concluded that “the use of BGA's images is incidental to the commercial biographical value of the book.”

Second Factor Analysis: “[T]he nature of the copyrighted work;”

BGA agreed “that the district court properly weighed the second factor against DK, although it question[ed] the lesser protection given to published works. The Second Circuit “recognized, however, that the second factor may be of limited usefulness where the creative work of art is being used for a transformative purpose.” Thus, “even though BGA's images are creative works, which are a core concern of copyright protection,” according to the Second Circuit, “the second factor has limited weight in [their] analysis because the purpose of DK's use was to emphasize the images' historical rather than creative value.”

Third Factor Analysis: “[T]he amount and substantiality of the portion used in relation to the copyrighted work as a whole;”

While recognizing that the third factor does not favor the copying of an entire work, the Second circuit nonetheless decided “such copying does not necessarily weigh against fair use because copying the entirety of a work is sometimes necessary to make a fair use of the image.” The court then held that DK’s transformative use fulfilled such a requirement:

Here, DK used BGA's images because the posters and tickets were historical artifacts that could document Grateful Dead concert events and provide a visual context for the accompanying text. To accomplish this use, DK displayed reduced versions of the original images and intermingled these visuals with text and original graphic art. As a consequence, even though the copyrighted images are copied in their entirety, the visual impact of their artistic expression is significantly limited because of their reduced size. See Kelly, 336 F.3d at 821 (concluding that thumbnails are not a substitute for full-size images). We conclude that such use by DK is tailored to further its transformative purpose because DK's reduced size reproductions of BGA's images in their entirety displayed the minimal image size and quality necessary to ensure the reader's recognition of the images as historical artifacts of Grateful Dead concert events.

Fourth Factor Analysis: “[T]he effect of the use upon the potential market for or value of the copyrighted work.”

On the final factor to consider, BGA argued that “DK interfered with the market for licensing its images for use in books[,]” . . . as “there is an established market for licensing its images and it suffered both the loss of royalty revenue directly from DK and the opportunity to obtain royalties from others.”

This argument failed to persuade the Second Circuit:

[W]ere a court automatically to conclude in every case that potential licensing revenues were impermissibly impaired simply because the secondary user did not pay a fee for the right to engage in the use, the fourth fair use factor would always favor the copyright holder.

* * *

Accordingly, we do not find a harm to BGA's license market merely because DK did not pay a fee for BGA's copyrighted images.

Instead, we look at the impact on potential licensing revenues for “traditional, reasonable, or likely to be developed markets.” In order to establish a traditional license market, [BGA] points to the fees paid to other copyright owners for the reproduction of their images in [the DK biography of the Grateful Dead]. Moreover, [BGA] asserts that it established a market for licensing its images, and in this case expressed a willingness to license images to DK. Neither of these arguments shows impairment to a traditional, as opposed to a transformative market.

Here . . . we hold that DK's use of BGA's images is transformatively different from their original expressive purpose.

* * *

“[C]opyright owners may not preempt exploitation of transformative markets ····” Moreover, a publisher's willingness to pay license fees for reproduction of images does not establish that the publisher may not, in the alternative, make fair use of those images. Since DK's use of BGA's images falls within a transformative market, BGA does not suffer market harm due to the loss of license fees.

Holding: “For the foregoing reasons, we conclude that DK's use of BGA's copyrighted images in its book Illustrated Trip is fair use. Accordingly, we AFFIRM.”

Totally Irrelevant Bonus Fun Fact From Footnote Three!

The [Dead's] otherwise brilliant Radio City run was marred by a bizarre dispute between the band and Radio City's management. The latter objected to promotional posters showing the inevitable skeletons flanking the venerable venue. Evidently not well versed in Grateful Dead iconography, the Radio City execs interpreted the posters as a coded message that the band thought that Radio City's days were numbered, and they slapped the band with a million-dollar lawsuit. The misunderstanding was quickly cleared up.

Comments

[tatianahunt download]

Nice topic
Thanks
I have found two interesting sources http://fileshunt.com and http://filesfinds.com and would like to give the benefit of my experience to you.