Judge Daniels

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IN THEIR biographical work about the musical group the Grateful Dead, defendants reproduced, in reduced size, seven concert posters. Opposing plaintiff’s copyright infringement action, defendants argued that the reproduced images constituted fair use under the Copyright Act. The court ruled defendants’ use of the images a non-infringing fair use. It found the images’ chronological placement on a timeline transformative and, distinguishing Ringgold v. Black Entertainment Television Inc., 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.