## Facts

- Bill Graham Archives, LLC (BGA) claimed copyrights in seven Grateful Dead concert poster and ticket images.
- Dorling Kindersley and related entities (DK) published *Grateful Dead: The Illustrated Trip*, a 480-page illustrated cultural history organized around a continuous timeline and containing over 2,000 images with text and captions.
- DK reproduced BGA’s seven images at substantially reduced size as part of the timeline, with captions identifying and dating the relevant concerts.
- Before publication, DK sought a license, but negotiations failed over price; DK published without a license.
- BGA sued DK in the Southern District of New York for copyright infringement; both sides moved for summary judgment.
- The district court granted summary judgment to DK on the ground of fair use under 17 U.S.C. § 107; BGA appealed.

## Issues

1. Whether DK’s unlicensed reproduction of seven Grateful Dead poster/ticket images, reduced in size and incorporated into a historical timeline book, constituted fair use under 17 U.S.C. § 107.
2. How transformative purpose and market effect should be assessed when copyrighted visual works are reproduced in a historical or documentary context.

## Decision

- The Second Circuit affirmed summary judgment for DK, holding the use was fair use under § 107.
- Factor 1 (purpose and character) strongly favored DK because the images were used as historical artifacts to document events in a timeline, a different function from the posters’ original promotional purpose; the commercial nature of the book carried reduced weight given the transformative use.
- Factor 2 (nature of the work) favored BGA because the images were creative, but the court treated this factor as less significant because DK used the images to convey factual/historical information in context.
- Factor 3 (amount used) did not weigh against fair use despite copying the images in full because copying the entire image was reasonable to identify the historical event; the reduced size reinforced the change in function and minimized expressive substitution.
- Factor 4 (market effect) favored DK because the use did not serve as a substitute for BGA’s originals or traditional licenses; the court focused on harm to traditional, reasonable, or likely-to-develop markets and rejected market claims that would give the copyright owner control over transformative historical uses.
- DK’s earlier attempt to license did not bar asserting fair use after negotiations failed.

## Legal Principles

- A use may be transformative when copyrighted images are repurposed as historical artifacts within a documentary or biographical narrative, even if reproduced in full, particularly where size and presentation prevent the images from serving their original promotional function.
- Commercial publication does not defeat fair use where the new use has a distinct purpose and character; the relevant inquiry is whether the defendant exploits the copyrighted material’s value as a substitute rather than creating a new informational use.
- Copying an entire work can be fair use when reasonably necessary for the defendant’s transformative purpose and presented in a manner that limits expressive substitution.
- Market harm under § 107(4) centers on substitution and injury to traditional, reasonable, or likely-to-be-developed derivative markets; a copyright holder cannot defeat fair use by positing a licensing market that would effectively tax or control transformative historical uses.
- Seeking a license and failing to reach agreement does not, by itself, negate a later fair-use defense.

## Conclusion

The Second Circuit held that DK’s reduced-size reproduction of concert posters and tickets within a heavily illustrated historical timeline served a transformative documentary purpose and did not cause cognizable harm to BGA’s traditional markets, making the use fair under 17 U.S.C. § 107.


Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006)