Appellate Court Upholds Fair Use of
Concert Posters
Concert Posters
In my June 2005 column, I reported on a case in the United States District Court for the Southern District of New York, Bill Graham Archives LLC v. Dorling Kindersley Limited, which determined that
That decision has now been affirmed by the United States Second Circuit Court of Appeals. The Court wrote an in depth analysis of the transformative aspect of the case, which may be instructive for future situations.
As you will recall, defendants sought permission to use the images in the book to help make it the "definitive Grateful Dead history." Defendants had the blessing of Grateful Dead Productions for the project. Plaintiff responded by offering such permission, but only in exchange for significant additional usage rights to create CDs and DVDs from other material controlled by Grateful Dead Productions. That offer was, naturally, refused as was a further offer of a high license fee.
When the book was published with these thumbnail images, plaintiff claimed rights from three to seven of the images used. (There was a dispute as to whether plaintiff controlled the copyright to four of the images.)
The Circuit Court did its own analysis of the fair use factors and agreed with the District Court that since the book was a biographical work and the use of the thumbnail size images did not supplant the market for the original work, the chronological order of the time line in the book added something new or "transformative" to the purpose or character of the images. Furthermore, this use did not adversely effect the plaintiff's market for the actual posters.
As a general principle and guideline, the Circuit Court, in reaffirming a prior holding, held that the ultimate test of fair use is whether the copyright law's goal of promoting the Progress of Science and Useful Arts would be better served by allowing the allegedly infringing use than by preventing it.
The Circuit Court also stated that, although as a general matter a copyright holder is entitled to demand a royalty for licensing use of copyrighted work and that the impact of an infringement upon the market for the copyrighted work is a proper subject in assessing market harm, the failure of a defendant to pay such a fee does not automatically create a harm where a fair use claim is made. Instead, the Court states that it looks at the impact on potential licensing revenues for "traditional, reasonable, or likely to be developed markets."
The Circuit Court further found that defendants offer to acquire usage rights and by informing plaintiff of the intended use could not be held against them in the fair use analysis because, if the use is ultimately considered to be fair, then no fees would have been due.
The combination of these factors, according to the Circuit Court, on balance, favored fair use. Accordingly, the Court affirmed the District Court's grant of summary judgment to defendants.
Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.
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