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When it comes to iconic images of the Grateful Dead, it’s hard to beat psychedelic-art concert posters that promoted the famed rock band throughout its long, strange trip. And when it comes to publishing, it turns out that using some of those copyrighted posters in a cultural history of the band is protected by the fair use doctrine. In particular, the use of seven images of concert posters displayed in “significantly reduced form” in a 480-page coffee table book about the Dead did not constitute copyright infringement, according to a recent ruling from the Second Circuit U.S. Court of Appeals. The ruling came down in favor of Dorling Kindersley Limited, which in 2003 published “Grateful Dead: The Illustrated Trip,” a chronology of the band’s history that included more than 2,000 images, along with text and graphics. The publisher, also known as DK, sought permission from the Bill Graham Archives to use the posters but included them anyway when permission was refused. The archives, which holds the copyrights to the posters, initially told DK that it was willing to allow publication of the images in exchange for permission from Grateful Dead Productions (which collaborated with DK on the book) to make CDs and DVDs out of concert footage. The publisher declined and then tried, unsuccessfully, to negotiate a license fee for posters as well as images of tickets for Grateful Dead concerts. The archives sought damages after DK used the images in its book. U.S. District Judge George Daniels in New York granted summary judgment for DK after finding fair use under �� of the Copyright Act, which is an exception to creators’ exclusive rights to reproduce copyrighted works where the material is used for “purposes such as criticism, comment, news reporting, teaching … scholarship, or research.” After appealing to the Second Circuit, lawyers for Bill Graham Archives said the strong presumption was an error because Daniels failed to examine DK’s justification for using each of the images. The archives also argued that simply placing the poster images along a timeline was not a “transformative use” � one that transforms the images by adding something new. But a three-judge panel disagreed with what it described as the archives’ “limited interpretation of transformative use.” Instead, it agreed that DK’s use of each copyrighted image was “transformatively different from the original expressive purpose.” “Overall, DK’s layout ensures that the images at issue are employed only to enrich the presentation of a cultural history of the Grateful Dead, not to exploit copyrighted artwork for commercial gain,” concluded the Second Circuit ruling. The appeals court also held that the seven poster images amounted to only an “inconsequential” portion of the book that made them “incidental” to its overall commercial value.

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