Grateful for Fair Use: Combining Text and Images

This week, we’ll look at fair use cases and learn about their effect on and meaning for the work that we do. Read more posts in our series about Fair Use Week 2018.

Bill Graham Archives v. Dorling Kindersley is a 2006 case about the transformative fair use of Grateful Dead concert posters. Publisher Dorling Kindersley used thumbnail images of seven posters to illustrate a timeline about the band’s history. Although many university faculty members and students are initially startled when I talk about Grateful Dead posters, I have found that this case is useful in discussing a variety of situations in which researchers combine text and images.

This case is particularly helpful for thinking about using visual images for commentary or other situations that are different from the images’ original purposes. Bill Graham Archives v. Dorling Kindersley also illustrates several points about fair use that are worth remembering.

• A defendant can prevail when asserting fair use even if the rights holder has refused permission to use the copyrighted work.
• Fair use does not require explicit words of criticism or commentary to appear along with the work that is being reproduced; the commentary can be inferred by the placement.
• The third factor in determining fair use—the amount and substantiality of the part used—does not always have to be expressed by using a lesser quantity of the copyrighted work. In Dorling Kindersley, the publishers used a lesser amount of the work by making the images much smaller than the original.
• A defendant can prevail when asserting fair use even if the rights holder has an established market for licensing reuse in other contexts. The court concluded we “do not find market harm based on BGA’s hypothetical loss of license revenue from DK’s transformative market.”

To learn more about the details in the case:

• Watch now! Fair Use and Picture Books: Bill Graham Archives v. Dorling Kindersley
• Read Grateful Dead: the illustrated trip. DK Books, 2003. Available at the UNC Undergraduate Library

Are you involved in Fair Use Week programs? What are your questions about fair use? Follow us and comment on Twitter @UNCScholComm and @OpenAcess_UNC.