Martine Courant Rife, JD, Lansing Community College and WIDE Research Center, Michigan State University
CASE OVERVIEW
On May 9, 2006, in Bill Graham Archives v. Dorling Kindersley, the US Court of Appeals for the Second Circuit upheld the lower court, finding the use of several Grateful Dead Poster images appearing in a band biography was a “fair use” under section 107 of the US copyright statute. In the case, the publisher Dorling Kindersley used without permission seven images of Grateful Dead concert posters or tickets in the book Grateful Dead: The Illustrated Trip (2003). Prior to the book’s publication, the publisher had unsuccessfully attempted to negotiate permissions with the copyright holder, Bill Graham Archives. Due to what the publisher perceived as an unreasonable licensing fee, permission agreements were never reached. Nonetheless, the publisher used the seven images in the book, incorporating them into remixed compositions, consisting of collages mixed with graphic art and textual explanations and commentary. Over 2000 images were used in the book. After the book’s publication, Bill Graham Archives brought suit for copyright infringement, and requested an injunction blocking further publication.
After conducting a careful four factor fair use analysis, the Second Circuit Court of Appeals upheld the lower court’s determination in favor of fair use. The Second Circuit found that with respect to the first factor, purpose and character of the use, the use of the Grateful Dead images was transformative since the images were used in a timeline and for historical purposes rather than for the posters’ original purposes of concert promotion. On the second factor regarding the nature of the copyrighted work, the court acknowledged this factor weighed against fair use because the posters were creative. Yet, the court limited the weight of this factor because the biographical book did not exploit the creative aspects of the posters. On the third factor, amount and substantiality of portion used, the court said that even though entire images were used, their reduced size was consistent with Dorling Kindersley’s transformative use. And finally, on the fourth factor, the court stated that Dorling’s use didn’t harm the potential market because no actual market harm was sustained, and, in this case, the court wouldn’t find market harm based on “hypothetical loss” of revenue.
While some of the pro-fair use discussions within the opinion should likely be approached with caution, the opinion does hold some useful material for educators and writing teachers. Certain guidelines might be extracted from the opinion for use by students creating new media compositions (as well as alphabetic ones), and for teachers in their pedagogies. The opinion upholds the concept that one should use others’ materials thoughtfully and sparingly, but that using entire images is not necessarily prohibited as long as the images are used transformatively, in this case, remixed with graphic art, text, and additional images. More care should be taken by writers who are composing purely “creative” works, in contrast to those who are composing something factual, historical, research based, for criticism or commentary. The opinion supports the view that permission is not always needed. And finally, the opinion brings to life the notion that hypothetically, the percentage of the new work that depends on prior work will prove determinative, even when dealing with purely alphabetic texts (the example given is a text wherein 40% of the total content was drawn from author J.D. Salinger’s letters via quotations and paraphrases). The opinion overall can be said to support using other’s work in remixes, especially when such compositions reflect synthesis of many works, including those of the remix author. According to the opinion, one might plausibly argue that the more synthesis a remix accomplishes, the more likely any uses of copyrighted material it contains will be deemed fair uses.
DISCUSSION OF THE CASE
The case came to the Second Circuit Court of Appeals after a favorable fair use judgment in the lower court, the US District Court for the Southern District of New York. The district court granted summary judgment in favor of the publisher-defendants on their fair use defense. The main question before the second circuit appeals court was to define the scope of copyright protection for artistic posters, subsequently reproduced in reduced size, in a biography of the Grateful Dead. Bill Graham Archives, LLC (BGA) owned the copyrights in the posters, while Dorling Kindersley Limited and its affiliates (DK) published the commercially available biography, in collaboration with Grateful Dead Productions. The 480-page coffee-table-book-biography, Grateful Dead: The Illustrated Trip (Illustrated Trip), was published in October 2003, and told the chronological story of the Grateful Dead via the use of a timeline along with over 2000 images. Throughout the book, images often appeared as remixes, in collage form with other images and graphic art, and throughout the book, explanatory text accompanied the images. Of the 2000 images reproduced in the book, DK used seven BGA owned images that had been originally depicted on Grateful Dead posters and tickets. To be exact, DK used the following images on the following book pages, as recited in the opinion:
- Concert poster depicting the Grateful Dead, Jefferson Airplane, and Big Brother and the Holding Company at the Hollywood Bowl (p.76);
- Concert poster of the Grateful Dead, Jefferson Airplane, and Sons of Chaplin at the Winterland Arena (p. 103);
- Image of both sides of a concert ticket for Fillmore Theatre-Winterland Arena shows (p. 130);
- Concert poster for Grateful Dead at the Warfield Theater (p. 254);
- Concert poster for Grateful Dead at the Oakland Coliseum (p. 361);
- Concert poster for a Grateful Dead show on New Year’s Eve (p. 397);
- A “fake in-house” poster for a 1993 New Year’s Eve Concert (p. 421).
Prior to publication, Grateful Dead Productions contacted BGA requesting permissions to use the images. BGA responded by offering to allow use in return for BGA’s right to use Grateful Dead concert videos in CD and DVD production. Subsequently, BGA offered licensing of the images for a set licensing fee, one that DK ultimately determined to be too high. Therefore, DK used the images in the book without permission of the publisher, even though licensing was available.
Once the book was published, BGA contacted DK and demanded post-production licensing fees. DK refused, prompting BGA to file suit for copyright infringement as well as an injunction from further production of the book. After applying a four factor fair use analysis to the posters’ reproduction, the lower District Court determined the use to be a fair use. BGA appealed, and the Second Circuit Court of Appeals determined the main question was to review whether DK’s use of BGA’s copyrighted images was a fair use.
Citing Harper & Row, the second circuit noted that such determinations must be made case-by-case based upon the four factors as recited in section 107 of the copyright statute:
- the purpose and character of the use;
- the nature of the copyright work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
- the effect of the use upon the potential market for or value of the copyrighted work. (17 USC Section 107)
The court then engaged in a very detailed factor-by-factor analysis of the use, noting first that after weighing “the purpose and character of the use” factor, this factor weighed in favor of fair use. Notably, Illustrated Trip was a biography, while the posters were for concert promotion. According to the court, this created a strong presumption in favor of fair use. In educational contexts, we often hear statements that if a use is non-profit, than it will be presumed to be a fair use, but in this case, the court made clear that if a use is different in nature to the intended use of the original material, that too may create a strong presumption in favor of fair use.
As a counter argument, BGA argued that placing the images along a timeline was not transformative, and that additionally, each image should have had some kind of commentary or criticism in order to be a fair use. The court denied this, noting that a 30 year biography of the Grateful Dead served very different purposes than those of the original posters — concert promotion. The court also noted that biographical use of copyrighted material is frequently supported as a fair use, because it allows for commentary, research, and criticism, as stated in the preamble of section 107, language introducing the four fair use factors. “Remix” wasn’t used in the opinion as a term, however on page 12, the court noted that “. . . to further this collage effect, the images are displayed at angles and the original graphical artwork is designed to blend with the images and text . . .DK’s layout ensure that the images . . .are employed only to enrich the presentation of the cultural history of the Grateful Dead, not to exploit the copyright artwork for commercial gain.” Still discussing the first factor, “purpose and nature of the use,” the court listed the exact size of the seven images, and noted that DK’s images amounted to less than 1/20 of the original size (even though entire images were used). Here, the court also noted the percentage of total copyrighted material used within a subsequent text was not determinative, citing Harper and Salinger; neither case found fair use. In Harper, the infringing material was only 13% of the entire copyrighted piece, while in Salinger, 40% of the subsequent work consisted of Salinger’s quoted or paraphrased letters. On the issue of DK’s commercial use of the images, the court noted that BGA’s images were not used to promote the book, and the images’ use was incidental to the commercial biographical value of the book.
With respect to the second, third, and fourth factors (which together took up less than half the opinion, since, as should be obvious, many of these last three factors were addressed when the court examined “purpose and character”), the second circuit agreed with the lower court that the “nature of the copyrighted work” factor weighed against fair use, since the posters were creative in nature. However, the court found this factor of limited use since the posters were not used to exploit their creative nature, but were instead used for historical purposes. On the “amount and substantiality of the portion used” factor, the court acknowledged that entire images were used. Yet, the court decided that entire images had to be used in this instance in order to communicate the history of the band. Reducing the images in this case, was deemed sufficient to overcome the presumption against fair use. Legal scholar Wendy Gordon (see reference below) found the court’s analysis of influence on market value to be most interesting, because here the court held that even though licensing was available, DK could still operate under fair use. Here, the court notes that the book was not commercially successful, but if it had been, it may even have increased the potential market for the posters. Nonetheless, the present use did not supercede the market for the copyrighted work, nor did it serve as a substitute. Citing Campbell, the court stated that “a publisher’s willingness to pay license fees for reproduction of images does not establish that the publisher may not, in the alternative, make fair use of those images” (p.21). In other words, the availability of licensing does not necessarily preclude fair use protections under the statute. The court therefore found in favor of fair use on this factor as well – thus stating that in balancing the four factors, BK’s use of the images was a fair use.
IMPLICATIONS FOR EDUCATORS AND WRITING TEACHERS
Fair use, for a significant period of time, has been of great interest to educators and particularly writing teachers (See for example Herrington, 1998; Kennedy, 2006; Logie, 1998; Reyman, 2006; Rife, 2007; Westbrook, 2006; Walker, 1998). This case provides a very clear four factor fair use analysis that should be helpful to any teacher dabbling in new media composing, either solo, or with their students in the classroom. On a pragmatic level, the opinion itself is clearly written and might provide excerpts or a starting point for further student-generated readings, research, and discussion in the classroom.
As far as its instructive qualities on conducting a fair use analysis, the written opinion itself points to the blurred and overlapping boundaries of the four factors. In its analysis of the first factor, “purpose and character of the use,” the court also considers the nature of the copyrighted work as well as the amount used. Also, while the court notes on page 7 that fair use has often been upheld in biography contexts, the three biography opinions the court cites in the opinion held against fair use (Harper, Salinger, Elvis). Yes, the court cites Campbell, which many assert upheld “fair use” in the context of 2 Live Crew’s parody use of Roy Orbison’s song, “Pretty Woman,” but one must remember that the Campbell court remanded the final decision back to the lower court for a consideration of impact on the copyright holder’s potential market, and so was not really a “holding” in favor of fair use in the strict legal sense. Thus, while it would be nice to hail the Graham Archives opinion as a highly favorable upholding of fair use, the opinion should be approached with some caution.
Even so, there are many fair-use-positives in this opinion. The court clearly described and acknowledged “remixed” compositions, although it doesn’t call the mix of graphic art, text, juxtaposed images, “remix.” This court does acknowledge though that such use, in the right context, can be a fair use, remarkably, even though licensing is available. First noting that ultimately, a second circuit opinion is not a Supreme Court opinion, and therefore will only have precedent within the second circuit (Connecticut, New York, Vermont), we may yet generalize and extract some basic guidelines from the opinion for use in pedagogy, and as suggestions for student remixing. These guidelines might be summarized as follows:
- If you are going to use another’s copyrighted image, use as little as possible (either in size or in amount) in order to accomplish your own writerly goals.
- Remixing another’s materials with bits and pieces you’ve created yourself, as well as more than one outside author’s work, will make your use more likely to be a fair use. Think synthesis.
- If you yourself are making something purely “creative” (a digital poem, movie, art), and using another’s material that is also “creative,” your use is less likely to be a fair use. But if you are taking a position on an issue, or creating a history or documentary meant to comment and criticize an issue or events, your use may be more likely to be fair even if the copyrighted materials you remix are creative.
- Despite a culture where permission requests are increasingly required (especially via institutional policies), the fair use doctrine does not necessarily require such permission requests.
- Finally, the opinion cites a case where 40% of quoted and paraphrased text came from another’s copyrighted material and notes that this creates a presumption of no fair use – therefore always contemplate your final work regardless of whether it’s pure alphabetic text or new media, and honestly evaluate whether it is truly “your own” work. If citations were done correctly, you may have avoided plagiarism, but even in a pure alphabetic essay, it does not necessarily mean you avoided potential copyright liability. The opinion provides further argument for beginning college-level writers: Most of the final written product, whether pure alphabetic text, or new media, should be your own work.
RELEVANT SOURCES
Bill Graham Archives v. Dorling Kindersley Limited, et al. (2006, May). USCA(2nd Cir.). http://www.fairuse.stanford.edu/primary_materials/cases/GrahamKindersley.pdf.
Campbell v. Acuff-Rose Music, Inc. (1994). 510 U.S. 569, 583-585. http://supct.law.cornell.edu/supct/html/92-1292.ZS.html.
Elvis Presley Enters., Inc. v. Passport Video. (2003). 349 F.3d 622 (9th Cir.). (Available on Find Law).
Harper & Row, Publishers, Inc. v. Nation Enters. (1985). 471 U.S. 539, 589-90. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=471&invol=539.
Herrington, T. K. (1998).The interdependency of fair use and the first amendment . Computers and Composition, 15, 2, 125-143.
Hunter, R., Stephen, P., Wills, C., & McNally, D. (2003). Grateful dead: The illustrated trip. DK Adult.
Kennedy, K. (2006). Google faces legal challenges in its effort to digitize university library contents. CCCC Online. /cccc/gov/committees/ip/125703.htm.
Logie, J. (1998). Champing at the bits: Computers, copyright, and the composition classroom. Computers and Composition, 15, 201-214.
Reyman, J. (2006). Copyright, distance education, and the TEACH Act: Implications for teaching writing. College Composition and Communication, 58,1, 30-45.
Rife, M.C. (2007, June). The fair use doctrine: History, application, and implications for (new media) writing teachers. Computers and Composition. 24,2. Forthcoming.
Salinger v. Random House, Inc. (1987). 811 F.2d 90 (2nd Cir.). http://www.law.cornell.edu/copyright/cases/811_F2d_90.htm.
US Court of Appeals Circuit Map. http://www.uscourts.gov/images/CircuitMap.pdf.
Walker, J.R. (1998). Copyrights and conversations: Intellectual property in the classroom. Computers and Composition 15, 243-251.
Wendy Gordon speaks about the Graham Archive case. (2006). [link removed]
Westbrook, S. (2006). Visual rhetoric in a culture of fear: Impediments to Multimedia Production. College English 68.5 (May 2006), 457-80.
David M. Grant is associate professor of English and former coordinator of writing at the University of Northern Iowa. His writing has appeared in JAC, PRE/TEXT, and Kairos and in the edited collections, Sustainability: Rhetorics, Literacies, and Narratives by Peter Goggin and Florida by Jeff Rice.
Laurie Grobman is a professor of English and women’s studies at Penn State Berks. Her teaching, research, and service center on community writing and multicultural education. Primary among this work is the facilitation of community-based undergraduate research projects to (re)write local histories of marginalized ethnic, racial, socioeconomic, and cultural communities in Berks County and the city of Reading, Pennsylvania. Grobman has published two single-authored books and four coedited collections. She has published more than forty articles in peer-reviewed journals and books. Laurie’s continued research on public memory in Reading, PA, involves the 2017 Pulitzer Prize-winning play, Sweat, by Lynn Nottage. The play is set in Reading.
Chris M. Anson is Distinguished University Professor and director of the Campus Writing and Speaking Program at North Carolina State University, where he teaches graduate and undergraduate courses in language, composition, and literacy and works with faculty across the curriculum to reform undergraduate education in the areas of writing and speaking. He has published 15 books and over 120 journal articles and book chapters, mostly focusing on the teaching and learning of writing. He is past chair of CCCC and past president of the Council of Writing Program Administrators.
Rebecca Brittenham is an associate professor of English at Indiana University, South Bend. She is the coauthor with Hildegard Hoeller of Key Words for Academic Writers, a dictionary of academic literacy, and she has coedited a reader anthology, Making Sense: Readings for Writers. Her previous research in composition studies appears in College English, JAC, The Journal of Developmental Education, and Excellence in Teaching: Narratives from Award-winning Faculty (forthcoming). A related piece based on graduate student literacy narratives of work is forthcoming in Pedagogy 18.1.
Eli Goldblatt is a professor of English at Temple University, where he directs New City Writing, the community engagement component of the writing program. His most recent book is Writing Home: A Literacy Autobiography (Southern Illinois UP) and his poetry collections include Speech Acts (Chax Pres) and Without a Trace (Singing Horse Press).