In Bill Graham Archives (BGA) v. Dorling Kindersley Ltd. (DK), the Second Circuit addressed whether the reproduction of images concert posters in a book constituted fair use under the Copyright Act of 1976. The court concluded that it did.
The case involved a biography of the Grateful Dead published by DK. The biography includes seven images of concert posters to which BGA owns the copyright. DK reproduced the images without BGA’s permission. Initially, DK sought permission from BGA to reproduce the images. The parties disagreed as to an appropriate license fee. Nevertheless, DK published its book without entering a license fee agreement with BGA.
BGA sued for copyright infringement. The district court determined that DK’s reproduction of the images was fair use and granted DK’s motion for summary judgment.
On appeal, the Second Circuit affirmed. It held:
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that Section 107 of the Copyright Act permits the unauthorized use or reproduction of copyrighted work if it is“for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research";
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that four factors will be considered to determine such fair use: (1) “the purpose and character of the use;” (2) “the nature of the copyrighted work;” (3) “the amount and substantiality of the portion used in relation to the copyrighted work as a whole;” and (4) “the effect of the use upon the potential market for or value of the copyrighted work";
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that the first fair use factor weighs in DK's favor because its use of BGA’s images is transformatively different from the images’ original expressive purpose and DK does not seek to exploit the images’ expressive value for commercial gain;
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that that even though BGA’s images are creative works, which are a core concern of copyright protection, the second factor has limited weight because the purpose of DK’s use was to emphasize the images’ historical rather than creative value;
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that by reducing the size of the images, DK tailored the reproduction of the images to further its transformative purpose; and
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that because 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.
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