Grateful Defendant

The New York Law Journal reports online (registration required) that the Southern District of New York has, thankfully, put a rare brake on the copyright rent grab.

Credit: Extraordinary collection of Dead posters at Berkeley's D.I. King Gallery.

The defendant, Dorling Kindersley Limited is known to parents of young children for its incredible illustrated books on the kinds of things kids wonder about -- how ships work, what went on in medieval castles, and the like. Evidently the company has another side: Deadheads. It published an illustrated book about psychedelic icons the Grateful Dead and in it reproduced, in reduced size, seven classic Grateful Dead concert posters. So, of course, the original copyright holder, Bill Graham Archives, LLC, sued.

(Just take a moment to enjoy the irony of these 1960's countercultural .... er,

Credit: EROWID

"figures" ... or their namesakes, slugging it out over who gets to profit from all that peace, love and understanding... no, that's not quite right -- was it three days of peace and music? ... Wonder who gets the last laugh?)

Defendants argued that their use of the posters in the book was fair use under the Copyright Act. The court agreed. According to the Law Journal:

It found the images' chronological placement on a timeline transformative and . . . noted that the posters were isolated examples across the Grateful Dead's career path. Despite observing that the posters' prior publication favored plaintiff's position, the court determined that defendants' reproductions did not capture the essence of the original, full-size posters. The court found no substantial effect on the market for the original work since the transformative nature of defendants' use of the posters was outside the ambit of lost licensing opportunities.

This is a significant decision which we will hear more about, as is any decision that preserves a semblance of fair use. Could this affect other IP holdups that prevent journalists and others from reporting on bona fide historical events, even if they somehow implicate copyright? One can dream...