Asking Permission Not a Bar to ‘Fair Use’ Defense
Dorley Kindersley was getting ready to publish a cultural history of the Grateful Dead illustrated with over 2,000 images. Seven images of concert posters were thought to be the perfect chapter heading.
Dorling Kindersley approached the Bill Graham Archives to use the posters; and permission was refused.
Notwithstanding that ‘not only ‘no’, but ‘hell no” answer, Dorley Kindersley made use of the seven same concert images for which it had asked permission, but made use in a different place in the book; a different size; and a different role.
The Second Circuit Court of Appeals in Bill Graham Archives v. Dorling Kindersley (05-2514) ruled on Monday that the Dorling Kindersley’s use of the posters qualified under the Fair Use Defense. The court held:
“This conclusion is strengthened by the manner in which DK displayed the images.” First because the use was substantially smaller than that for which DK had asked; and because the posters graphic was used in the chronological time line which conveyed the historical significance of the graphic art of the posters.
“Overall, DK’s layout ensure that the images at issue were employed only to enrich the presentation of a cultural history of the Grateful Dean, not to exploit copyrighted artwork for commercial gain”.