Second Circuit decision on copyright "fair use"

The Second Circuit recently issued a opinion discussing whether use of a few shrunk-down images of copyrighted concert posters in a historical coffee table book about the Grateful Dead violated copyright law.

In Bill Graham Archives v. Doris Kindersley Ltd., No. 05-2514-cv (2d Cir. May 9, 2006), the plaintiff noticed the use of its images in the book, which it found HARD TO HANDLE. It sued the defendant, and said THE RACE IS ON. Its complaint tried to take the book's publishers to SHAKEDOWN STREET using the copyright laws, but the defendant claimed fair use, and that was THE RUB. And once the district court analyzed the fair use factors, it said it LOOKS LIKE RAIN for the plaintiff, who was told on summary judgment to BEAT IT ON DOWN THE LINE, and ended up the LOSER in the district court.

At the Second Circuit, the EYES OF THE [copyright] WORLD were upon the court. Of the four "fair use factors" in 17 U.S.C. § 107, the Second Circuit focused primarily on "the purpose and character" of the defendants' use. The court held that the defendants' use of the work was "transformative," in that it used only a few images, in much-reduced size, and integrated them into a historical timeline and provided historical information about the concerts depicted in the posters. The court also noted that the plaintiff's works constituted only a very small portion of the challenged book, and that the defendants hadn't used the works in the advertising for the book. This was the most important factor, in the Second Circuit's view, and it had a RIPPLE effect on the THE OTHER ONEs (fair use factors, that is).

AROUND & AROUND the arguments went on the other three fair use factors. While the plaintiff got some GOOD LOVIN' on the creative nature of its work (the second fair use factor), the court held that its significance amounted to JACK STRAW in light of the importance of the first factor. The court also found that the "amount and substantiality" of the work copied was small, and that plaintiff's use of thumbnails didn't eat into the market for or value of the originals, which were not ever licensed in such a way.

Concluding that only a SHIP OF FOOLS would side with the plaintiff on this one, the Second Circuit said, IT'S ALL OVER NOW, leaving the plaintiff in the COLD RAIN AND SNOW. Its copyright claim looking like a BROKEDOWN PALACE, the plaintiff had to say, YOU WIN AGAIN, and ultimately ended up GOIN' DOWN THE ROAD FEELIN' BAD.

Since the court thought its legal analysis should NOT FADE AWAY, this opinion will be published.