Bill Graham Archives v. Dorling Kindersley, Ltd.

Bill Graham Archives v. Dorling Kindersley Ltd.
Court	United States Court of Appeals for the Second Circuit
Argued	January 4 2006
Decided	May 9 2006
Citation(s)	448 F.3d 605
Case history
Procedural history	Summary judgement for defendant, 386 F.Supp.2d 324 (S.D.N.Y. 2005)
Holding
Images of concert posters and tickets, greatly reduced from original, in a reference book timeline, was fair use as it transformed the works into historical artifacts that enhanced understanding of subject band's history, limiting importance of expressive nature of original work; assessment of market impact of copied works is limited to traditional markets for derivative works. Southern District affirmed.
Court membership
Judge(s) sitting	Kearse, Raggi, Restani (sitting by designation)
Case opinions
Majority	Restani, joined by unanimous

Bill Graham Archives v. Dorling Kindersley, Ltd., 448 F.3d 605, is a 2006 case of the United States Court of Appeals for the Second Circuit regarding fair use of images in a pictorial history text. It affirmed the United States District Court for the Southern District of New York, which held at trial that the publisher's use of several images of past Grateful Dead concert posters and tickets, reduced considerably, in a timeline of the band's history was a sufficiently transformative use.

The case began during the pre-production of Grateful Dead: The Illustrated Trip, a coffee table book published by Dorling Kindersley (DK) that included a wide variety of information and imagery, presented in a timeline format beginning with the band's 1965 founding. DK had been negotiating licensing terms with the Bill Graham Archives (BGA), whose holdings include many works created to promote Grateful Dead concerts staged by Bill Graham. After the parties could not reach an agreement on terms for seven images to which BGA held the rights, DK nevertheless decided to use them in the book, which was published in October 2003.

BGA sued for copyright infringement in the Southern District. Both parties sought summary judgement. Judge George B. Daniels granted DK's motion for summary judgement in 2005, holding that the use of reduced images to illustrate historic moments in the band's past was sufficiently transformative from their original promotional purpose to make them fair use. On appeal, the Second Circuit's affirmation elaborated on Daniels's reasoning, narrowing his finding that the second factor in the fair use analysis, the nature of the original work, favored BGA, since the transformative use of the works as history limited the relevance of their artistic value. It also distinguished the case from an earlier Second Circuit precedent, limiting the analysis of the fourth factor, the market impact of the allegedly infringing work, to only traditional markets for derivative works. Lastly, it held that a reuser's willingness to license a work does not preclude it from later claiming fair use if it chooses not to.^[1]

While Bill Graham Archives has been praised for its limitation on assessing the market impact, it has been criticized for extending a standard of transformative use originally intended to be applied only to parody to all such uses, and expanding the role of the transformative use analysis to the point where it by itself becomes dispositive of the fair-use question.