The main question before the second circuit appeals court was to define the scope of copyright protection for artistic posters, subsequently reproduced in reduced size, in a biography of the Grateful Dead. The district court granted summary judgment in favor of the publisher-defendants on their fair use defense. The case came to the Second Circuit Court of Appeals after a favorable fair use judgment in the lower court, the US District Court for the Southern District of New York. According to the opinion, one might plausibly argue that the more synthesis a remix accomplishes, the more likely any uses of copyrighted material it contains will be deemed fair uses. The opinion overall can be said to support using other’s work in remixes, especially when such compositions reflect synthesis of many works, including those of the remix author. Salinger’s letters via quotations and paraphrases). And finally, the opinion brings to life the notion that hypothetically, the percentage of the new work that depends on prior work will prove determinative, even when dealing with purely alphabetic texts (the example given is a text wherein 40% of the total content was drawn from author J.D. The opinion supports the view that permission is not always needed. More care should be taken by writers who are composing purely “creative” works, in contrast to those who are composing something factual, historical, research based, for criticism or commentary.

The opinion upholds the concept that one should use others’ materials thoughtfully and sparingly, but that using entire images is not necessarily prohibited as long as the images are used transformatively, in this case, remixed with graphic art, text, and additional images. Certain guidelines might be extracted from the opinion for use by students creating new media compositions (as well as alphabetic ones), and for teachers in their pedagogies. While some of the pro-fair use discussions within the opinion should likely be approached with caution, the opinion does hold some useful material for educators and writing teachers. And finally, on the fourth factor, the court stated that Dorling’s use didn’t harm the potential market because no actual market harm was sustained, and, in this case, the court wouldn’t find market harm based on “hypothetical loss” of revenue. On the third factor, amount and substantiality of portion used, the court said that even though entire images were used, their reduced size was consistent with Dorling Kindersley’s transformative use. Yet, the court limited the weight of this factor because the biographical book did not exploit the creative aspects of the posters. On the second factor regarding the nature of the copyrighted work, the court acknowledged this factor weighed against fair use because the posters were creative. The Second Circuit found that with respect to the first factor, purpose and character of the use, the use of the Grateful Dead images was transformative since the images were used in a timeline and for historical purposes rather than for the posters’ original purposes of concert promotion. After the book’s publication, Bill Graham Archives brought suit for copyright infringement, and requested an injunction blocking further publication.Īfter conducting a careful four factor fair use analysis, the Second Circuit Court of Appeals upheld the lower court’s determination in favor of fair use. Nonetheless, the publisher used the seven images in the book, incorporating them into remixed compositions, consisting of collages mixed with graphic art and textual explanations and commentary. Due to what the publisher perceived as an unreasonable licensing fee, permission agreements were never reached. Prior to the book’s publication, the publisher had unsuccessfully attempted to negotiate permissions with the copyright holder, Bill Graham Archives. In the case, the publisher Dorling Kindersley used without permission seven images of Grateful Dead concert posters or tickets in the book Grateful Dead: The Illustrated Trip (2003). Dorling Kindersley, the US Court of Appeals for the Second Circuit upheld the lower court, finding the use of several Grateful Dead Poster images appearing in a band biography was a “fair use” under section 107 of the US copyright statute. On May 9, 2006, in Bill Graham Archives v.

Martine Courant Rife, JD, Lansing Community College and WIDE Research Center, Michigan State University CASE OVERVIEW

Grateful dead posters