448 F.

3d 605

BILL GRAHAM ARCHIVES, Plaintiff-Appellant,

v.
DORLING KINDERSLEY LIMITED, Dorling Kindersley
Publishing, Inc. and RR Donnelley & Sons Company,
Defendants-Appellees.
Docket No. 05-2514-CV.
United States Court of Appeals, Second Circuit.
Argued January 4, 2006.
Decided May 9, 2006.

William F. Patry (Paul M. Fakler, on the brief), Thelen Reid & Priest LLP,
for Plaintiff-Appellant.
Richard Dannay (Thomas Kjellberg, on the brief), Cowan, Liebowitz &
Latman, P.C., for Defendants-Appellees.
Before: KEARSE and RAGGI, Circuit Judges, and RESTANI, * Judge.
RESTANI, Judge.

This appeal concerns the scope of copyright protection afforded artistic concert
posters reproduced in reduced size in a biography of the musical group the
Grateful Dead. Asserted copyright holder Bill Graham Archives, LLC ("BGA"
or "Appellant") appeals from a judgment of the District Court for the Southern
District of New York dismissing, on motion for summary judgment, its
copyright infringement action against Dorling Kindersley Limited, Dorling
Kindersley Publishing, Inc., and R.R. Donnelley & Sons Company (collectively
"DK" or "Appellees"). We review the district court's grant of summary
judgment de novo, and we agree with the court that DK's reproduction of
BGA's images is protected by the fair use exception to copyright infringement.

BACKGROUND
2

In October of 2003, DK published Grateful Dead: The Illustrated Trip

("Illustrated Trip"), in collaboration with Grateful Dead Productions, intended

as a cultural history of the Grateful Dead. The resulting 480-page coffee table
book tells the story of the Grateful Dead along a timeline running continuously
through the book, chronologically combining over 2000 images representing
dates in the Grateful Dead's history with explanatory text. A typical page of the
book features a collage of images, text, and graphic art designed to
simultaneously capture the eye and inform the reader. Plaintiff BGA claims to
own the copyright to seven images displayed in Illustrated Trip, which DK
reproduced without BGA's permission.
3

Initially, DK sought permission from BGA to reproduce the images. In May of

2003, the CEO of Grateful Dead Productions sent a letter to BGA seeking
permission for DK to publish the images. BGA responded by offering
permission in exchange for Grateful Dead Productions' grant of permission to
BGA to make CDs and DVDs out of concert footage in BGA's archives. Next,
DK directly contacted BGA seeking to negotiate a license agreement, but the
parties disagreed as to an appropriate license fee. Nevertheless, DK proceeded
with publication of Illustrated Trip without entering a license fee agreement
with BGA. Specifically, DK reproduced seven artistic images originally
depicted on Grateful Dead event posters and tickets.1 BGA's seven images are
displayed in significantly reduced form and are accompanied by captions
describing the concerts they represent.

When DK refused to meet BGA's post-publication license fee demands, BGA

filed suit for copyright infringement. BGA sought to enjoin further publication
of Illustrated Trip, the destruction of all unsold books, and actual and statutory
damages. The parties cross-moved for summary judgment, with the primary
issue before the district court being whether DK's use of BGA's images
constituted fair use under the Copyright Act of 1976, 17 U.S.C. 101 et seq.
("Copyright Act"). After applying the statutory fair use balancing test, the
district court determined that DK's reproduction of the images was fair use and
granted DK's motion for summary judgment.

DISCUSSION
5

Section 106 of the Copyright Act grants copyright holders a bundle of exclusive
rights, including the right to "reproduce the copyrighted work in copies," and
the right "to prepare derivative works based upon the copyrighted work." 17
U.S.C. 106. For purposes of the motion, the district court assumed plaintiff
possessed these rights in the contested images and there is no dispute that
copying the images was not authorized by plaintiff. The issue before us on
appeal, as it was in the district court, is whether DK's unauthorized use of
BGA's copyrighted images is fair use.

The fair use doctrine is a statutory exception to copyright infringement. Section

107 of the Copyright Act permits the unauthorized use or reproduction of
copyrighted work if it is "for purposes such as criticism, comment, news
reporting, teaching ..., scholarship, or research." 17 U.S.C. 107. Whether such
"fair use" exists involves a case-by-case determination using four nonexclusive, statutorily provided factors in light of the purposes of copyright.
Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 549, 105 S.Ct.
2218, 85 L.Ed.2d 588 (1985). The factors are: (1) "the purpose and character of
the use;" (2) "the nature of the copyrighted work;" (3) "the amount and
substantiality of the portion used in relation to the copyrighted work as a
whole;" and (4) "the effect of the use upon the potential market for or value of
the copyrighted work." 17 U.S.C. 107. "The ultimate test of fair use ... is
whether the copyright law's goal of promoting the Progress of Science and
useful Arts would be better served by allowing the use than by preventing it."
Castle Rock Entm't, Inc. v. Carol Publ'g Group, 150 F.3d 132, 141 (2d
Cir.1998) (internal citations and quotation marks omitted).

In this case, the district court concluded that the balance of fair use factors
weighs in favor of DK. Although the issue of fair use is a mixed question of law
and fact, the court may resolve issues of fair use at the summary judgment
stage where there are no genuine issues of material fact as to such issues.
Wright v. Warner Books, Inc., 953 F.2d 731, 735 (2d Cir. 1991). As there are no
genuine issues of material fact here, we review the district court's legal
conclusions de novo. New Era Publ'ns Int'l, ApS v. Carol Publ'g Group, 904
F.2d 152, 155 (2d Cir.1990). We agree with the district court that DK's use of
the copyrighted images is protected as fair use.
I. Purpose and Character of Use

We first address "the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational purposes." 17
U.S.C. 107(1).2 Most important to the court's analysis of the first factor is the
"transformative" nature of the work. See Pierre N. Leval, Toward a Fair Use
Standard, 103 Harv. L.Rev. 1105, 1111 (1990). The question is "whether the
new work merely supersede[s] the objects of the original creation, or instead
adds something new, with a further purpose or different character, altering the
first with new expression, meaning, or message." Campbell v. Acuff-Rose
Music, Inc., 510 U.S. 569, 579, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994)
(internal citations and quotation marks omitted) (alteration in original).

Here, the district court determined that Illustrated Trip is a biographical work,
and the original images are not, and therefore accorded a strong presumption in

favor of DK's use. In particular, the district court concluded that DK's use of
images placed in chronological order on a timeline is transformatively different
from the mere expressive use of images on concert posters or tickets. Because
the works are displayed to commemorate historic events, arranged in a creative
fashion, and displayed in significantly reduced form, the district court held that
the first fair use factor weighs heavily in favor of DK.
10

Appellant challenges the district court's strong presumption in favor of fair use
based on the biographical nature of Illustrated Trip. Appellant argues that
based on this purported error the district court failed to examine DK's
justification for its use of each of the images. Moreover, Appellant argues that
as a matter of law merely placing poster images along a timeline is not a
transformative use. Appellant asserts that each reproduced image should have
been accompanied by comment or criticism related to the artistic nature of the
image.

11

We disagree with Appellant's limited interpretation of transformative use and

we agree with the district court that DK's actual use of each image is
transformatively different from the original expressive purpose. Preliminarily,
we recognize, as the district court did, that Illustrated Trip is a biographical
work documenting the 30-year history of the Grateful Dead. While there are no
categories of presumptively fair use, see Campbell v. Acuff-Rose Music, Inc.,
510 U.S. at 584, 114 S.Ct. 1164, courts have frequently afforded fair use
protection to the use of copyrighted material in biographies, recognizing such
works as forms of historic scholarship, criticism, and comment that require
incorporation of original source material for optimum treatment of their
subjects. See 17 U.S.C. 107 (stating that fair use of a copyrighted work "for
purposes such as criticism, comment . . . [or] scholarship ... is not an
infringement of copyright"); Am. Geophysical Union v. Texaco, Inc., 60 F.3d
913, 932 (2d Cir.1994) (Jacobs, J., dissenting) (noting that "[m]uch of our fair
use case law has been generated by the use of quotation in biographies, a
practice that fits comfortably within the[] statutory categories of uses
illustrative of uses that can be fair") (internal quotation marks omitted)
(alteration in original); Salinger v. Random House, Inc., 811 F.2d 90, 96 (2d
Cir.1987) (holding that quotation of Salinger's letters in a biography could be
considered criticism, scholarship, and research, which are among the
illustrative statutory categories of fair use enumerated in 17 U.S.C. 107). No
less a recognition of biographical value is warranted in this case simply
because the subject made a mark in pop culture rather than some other area of
human endeavor. See Twin Peaks Prods., Inc. v. Publ'ns Int'l, Ltd., 996 F.2d
1366, 1374 (2d Cir.1993) (noting that a work that comments about "pop
culture" is not removed from the scope of Section 107 simply because it is not

erudite).
12

In the instant case, DK's purpose in using the copyrighted images at issue in its
biography of the Grateful Dead is plainly different from the original purpose
for which they were created. Originally, each of BGA's images fulfilled the
dual purposes of artistic expression and promotion. The posters were apparently
widely distributed to generate public interest in the Grateful Dead and to
convey information to a large number people about the band's forthcoming
concerts. In contrast, DK used each of BGA's images as historical artifacts to
document and represent the actual occurrence of Grateful Dead concert events
featured on Illustrated Trip's timeline.

13

In some instances, it is readily apparent that DK's image display enhances the
reader's understanding of the biographical text.3 In other instances, the link
between image and text is less obvious; nevertheless, the images still serve as
historical artifacts graphically representing the fact of significant Grateful Dead
concert events selected by the Illustrated Trip's author for inclusion in the
book's timeline.4 We conclude that both types of uses fulfill DK's
transformative purpose of enhancing the biographical information in Illustrated
Trip, a purpose separate and distinct from the original artistic and promotional
purpose for which the images were created. See Elvis Presley Enters., Inc. v.
Passport Video, 349 F.3d 622, 628-29 (9th Cir.2003) (finding the use of
television clips to be transformative where "the clips play for only a few
seconds and are used for reference purposes while a narrator talks over them or
interviewees explain their context in Elvis' career," but not to be transformative
where the clips "play without much interruption, [and t]he purpose of showing
these clips likely goes beyond merely making a reference for a biography, but
instead serves the same intrinsic entertainment value that is protected by
Plaintiffs' copyrights"); see also Hofheinz v. A & E Television Networks, Inc.,
146 F.Supp.2d 442, 446-47 (S.D.N.Y.2001) (ruling that unauthorized inclusion
of copyrighted film clips in actor's biographical film was protected fair use
because the biography "was not shown to recreate the creative expression
reposing in plaintiff's [copyrighted] film, [but] for the transformative purpose
of enabling the viewer to understand the actor's modest beginnings in the film
business"). In sum, because DK's use of the disputed images is transformative
both when accompanied by referencing commentary and when standing alone,
we agree with the district court that DK was not required to discuss the artistic
merits of the images to satisfy this first factor of fair use analysis.

14

This conclusion is strengthened by the manner in which DK displayed the

images. First, DK significantly reduced the size of the reproductions. See Kelly
v. Arriba Soft Corp., 336 F.3d 811, 818-20 (9th Cir. 2003) (finding online

search engine's use of thumbnail-sized images to be highly transformative).

While the small size is sufficient to permit readers to recognize the historical
significance of the posters, it is inadequate to offer more than a glimpse of their
expressive value. In short, DK used the minimal image size necessary to
accomplish its transformative purpose.
15

Second, DK minimized the expressive value of the reproduced images by

combining them with a prominent timeline, textual material, and original
graphical artwork, to create a collage of text and images on each page of the
book. 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.
Overall, DK's layout ensures that the images at issue are employed only to
enrich the presentation of the cultural history of the Grateful Dead, not to
exploit copyrighted artwork for commercial gain. See Hofheinz, 146 F.Supp. at
446.

16

Third, BGA's images constitute an inconsequential portion of Illustrated Trip.

The extent to which unlicensed material is used in the challenged work can be a
factor in determining whether a biographer's use of original materials has been
sufficiently transformative to constitute fair use. See Craft v. Kobler, 667
F.Supp. 120, 129 (S.D.N.Y.1987) (Leval, J.) (finding biography of Stravinsky
to be unfair in part because the takings were numerous and were the "liveliest
and most entertaining part of the biography"). Although our circuit has
counseled against considering the percentage the allegedly infringing work
comprises of the copyrighted work in conducting third-factor fair use analysis,
see NXIVM Corp. v. Ross Inst., 364 F.3d 471, 480 (2d Cir.2004), several courts
have done so, see, e.g., Harper, 471 U.S. at 565-66, 105 S.Ct. 2218 (finding the
fact that quotes from President Ford's unpublished memoirs played a central
role in the allegedly infringing magazine article, constituting 13% of that
article, weighed against a finding of fair use); Salinger, 811 F.2d at 98-99
(finding the fact that letters are quoted or paraphrased on approximately 40% of
the book's 192 pages weighs against fair use). We find this inquiry more
relevant in the context of first-factor fair use analysis.

17

In the instant case, the book is 480 pages long, while the BGA images appear
on only seven pages. Although the original posters range in size from 13" x 19"
to more than 19" x 27," the largest reproduction of a BGA image in Illustrated
Trip is less than 3" x 4," less than 1/20 the size of the original. And no BGA
image takes up more than one-eighth of a page in a book or is given more
prominence than any other image on the page. In total, the images account for
less than one-fifth of one percent of the book. This stands in stark contrast to
the wholesale takings in cases such as those described above, and we are aware

of no case where such an insignificant taking was found to be an unfair use of

original materials.
18

Finally, as to this first factor, we briefly address the commercial nature of

Illustrated Trip. See Harper, 471 U.S. at 562, 105 S.Ct. 2218 (stating that the
fact that the purpose of a new use is commercial weighs against finding fair
use). Even though Illustrated Trip is a commercial venture, we recognize that
"nearly all of the illustrative uses listed in the preamble paragraph of 107 ...
are generally conducted for profit ...." Campbell, 510 U.S. at 584, 114 S.Ct.
1164 (internal quotation marks omitted). Moreover, "[t]he crux of the
profit/nonprofit distinction is not whether the sole motive of the use is
monetary gain but whether the user stands to profit from exploitation of the
copyrighted material without paying the customary price." Harper, 471 U.S. at
562, 105 S.Ct. 2218. Here, Illustrated Trip does not exploit the use of BGA's
images as such for commercial gain. Significantly, DK has not used any of
BGA's images in its commercial advertising or in any other way to promote the
sale of the book. Illustrated Trip merely uses pictures and text to describe the
life of the Grateful Dead. By design, the use of BGA's images is incidental to
the commercial biographical value of the book.

19

Accordingly, we conclude that the first fair use factor weighs in favor of DK
because DK's use of BGA's images is transformatively different from the
images' original expressive purpose and DK does not seek to exploit the images'
expressive value for commercial gain.
II. Nature of the Copyrighted Work

20

The second factor in a fair use determination is "the nature of the copyrighted
work." 17 U.S.C. 107(2). To resolve this inquiry the court considers "the
protection of the reasonable expectations of one who engages in the kinds of
creation/authorship that the copyright seeks to encourage." Leval, supra, at
1122. "[C]reative expression for public dissemination falls within the core of
the copyright's protective purposes." Campbell, 510 U.S. at 586, 114 S.Ct.
1164.

21

The district court determined that the second factor weighs against DK because
the images are creative artworks, which are traditionally the core of intended
copyright protection. Nevertheless, the court limited the weight it placed on
this factor because the posters have been published extensively. Appellant
agrees that the district court properly weighed the second factor against DK,
although it questions the lesser protection given to published works. Appellees

counter that because the images are mixed factual and creative works and have
been long and extensively published, the second factor tilts toward fair use.
22

We agree with the district court that the creative nature of artistic images
typically weighs in favor of the copyright holder. We recognize, however, that
the second factor may be of limited usefulness where the creative work of art is
being used for a transformative purpose. See Campbell, 510 U.S. at 586, 114
S.Ct. 1164 (stating that the second factor is not "likely to help much in
separating the fair use sheep from the infringing goats" in cases involving
transformative copying of "publicly known, expressive works"). This is not a
case such as Ringgold v. Black Entm't Television, Inc., 126 F.3d 70 (2d
Cir.1997), in which we held that the creative work was being used for the same
decorative purpose as the original. Here, we conclude that DK is using BGA's
images for the transformative purpose of enhancing the biographical
information provided in Illustrated Trip. Accordingly, we hold that even
though BGA's images are creative works, which are a core concern of
copyright protection, the second factor has limited weight in our analysis
because the purpose of DK's use was to emphasize the images' historical rather
than creative value.

23

III. Amount and Substantiality of the Portion Used

24

The third fair use factor asks the court to examine "the amount and
substantiality of the portion used in relation to the copyrighted work as a
whole." 17 U.S.C. 107(3). We review this factor with reference to the
copyrighted work, not the infringing work. New Era, 904 F.2d at 159. The
court must examine the quantitative and qualitative aspects of the portion of the
copyrighted material taken. Campbell, 510 U.S. at 586, 114 S.Ct. 1164.

25

The district court determined that even though the images are reproduced in
their entirety, the third fair use factor weighs in favor of DK because the images
are displayed in reduced size and scattered among many other images and texts.
In faulting this conclusion, Appellant contends that the amount used is
substantial because the images are copied in their entirety. Neither our court nor
any of our sister circuits has ever ruled that the copying of an entire work
favors fair use. At the same time, however, courts have concluded that such
copying does not necessarily weigh against fair use because copying the
entirety of a work is sometimes necessary to make a fair use of the image. See
Kelly, 336 F.3d at 821 (concluding that images used for a search engine
database are necessarily copied in their entirety for the purpose of recognition);
Nunez v. Caribbean Int'l News Corp., 235 F.3d 18, 24 (1st Cir.2000)
(concluding that to copy any less than the entire image would have made the

picture useless to the story). Adopting this reasoning, we conclude that the
third-factor inquiry must take into account that the "the extent of permissible
copying varies with the purpose and character of the use." Campbell, 510 U.S.
at 586-87, 114 S.Ct. 1164.
26

Here, DK used BGA's images because the posters and tickets were historical
artifacts that could document Grateful Dead concert events and provide a visual
context for the accompanying text. To accomplish this use, DK displayed
reduced versions of the original images and intermingled these visuals with text
and original graphic art. As a consequence, even though the copyrighted images
are copied in their entirety, the visual impact of their artistic expression is
significantly limited because of their reduced size. See Kelly, 336 F.3d at 821
(concluding that thumbnails are not a substitute for full-size images). We
conclude that such use by DK is tailored to further its transformative purpose
because DK's reduced size reproductions of BGA's images in their entirety
displayed the minimal image size and quality necessary to ensure the reader's
recognition of the images as historical artifacts of Grateful Dead concert events.
Accordingly, the third fair use factor does not weigh against fair use.

27

IV. Effect of the Use upon the Market for or Value of the Original

28

The fourth factor is "the effect of the use upon the potential market for or value
of the copyrighted work." 17 U.S.C. 107(4). The court looks to not only the
market harm caused by the particular infringement, but also to whether, if the
challenged use becomes widespread, it will adversely affect the potential
market for the copyrighted work. Harper, 471 U.S. at 568, 105 S.Ct. 2218. This
analysis requires a balancing of "the benefit the public will derive if the use is
permitted and the personal gain the copyright owner will receive if the use is
denied." MCA, Inc. v. Wilson, 677 F.2d 180, 183 (2d Cir.1981).

29

In the instant case, the parties agree that DK's use of the images did not impact
BGA's primary market for the sale of the poster images. Instead, we look to
whether DK's unauthorized use usurps BGA's potential to develop a derivative
market. Appellant argues that DK interfered with the market for licensing its
images for use in books. Appellant contends that there is an established market
for licensing its images and it suffered both the loss of royalty revenue directly
from DK and the opportunity to obtain royalties from others.

30

"It is indisputable that, as a general matter, a copyright holder is entitled to

demand a royalty for licensing others to use its copyrighted work, and that the
impact on potential licensing revenues is a proper subject for consideration in

assessing the fourth factor." Texaco, 60 F.3d at 929 (citations omitted). We

have noted, however, that "were a court automatically to conclude in every case
that potential licensing revenues were impermissibly impaired simply because
the secondary user did not pay a fee for the right to engage in the use, the fourth
fair use factor would always favor the copyright holder." Id. at 930 n. 17
(emphasis added); see Princeton Univ. Press v. Mich. Document Servs., 99
F.3d 1381, 1387 (6th Cir.1996) (stating that a copyright holder must have a
right to copyright revenues before finding that a failure to pay a license fee
equals market harm); Leval, supra, at 1124 (stating that "[b]y definition every
fair use involves some loss of royalty revenue because the secondary user has
not paid royalties"); 4 Melville B. Nimmer & David Nimmer, Nimmer on
Copyright 13.05[A][4] (2005) (stating that "it is a given in every fair use case
that plaintiff suffers a loss of a potential market if that potential is defined as
the theoretical market for licensing the very use at bar"). Accordingly, we do
not find a harm to BGA's license market merely because DK did not pay a fee
for BGA's copyrighted images.
31

Instead, we look at the impact on potential licensing revenues for "traditional,

reasonable, or likely to be developed markets." Texaco, 60 F.3d at 930. In order
to establish a traditional license market, Appellant points to the fees paid to
other copyright owners for the reproduction of their images in Illustrated Trip.
Moreover, Appellant asserts that it established a market for licensing its
images, and in this case expressed a willingness to license images to DK.
Neither of these arguments shows impairment to a traditional, as opposed to a
transformative market.5 See Leval, supra, at 1125 (explaining that "[t]he fourth
factor disfavors a finding of fair use only when the market is impaired because
the ... material serves the consumer as a substitute, or, ... supersedes the use of
the original") (internal quotation marks omitted).

32

Here, unlike in Texaco, we hold that DK's use of BGA's images is

transformatively different from their original expressive purpose.6 In a case
such as this, a copyright holder cannot prevent others from entering fair use
markets merely "by developing or licensing a market for parody, news
reporting, educational or other transformative uses of its own creative work."
Castle Rock, 150 F.3d at 146 n. 11. "[C]opyright owners may not preempt
exploitation of transformative markets ...." Id. Moreover, 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.
Campbell, 510 U.S. at 585 n. 18, 114 S.Ct. 1164 (stating that "being denied
permission to use [or pay license fees for] a work does not weigh against a
finding of fair use"). Since DK's use of BGA's images falls within a
transformative market, BGA does not suffer market harm due to the loss of

license fees.
V. Balance of Factors
33

On balance, we conclude, as the district court did, that the fair use factors
weigh in favor of DK's use. For the first factor, we conclude that DK's use of
concert posters and tickets as historical artifacts of Grateful Dead performances
is transformatively different from the original expressive purpose of BGA's
copyrighted images. While the second factor favors BGA because of the
creative nature of the images, its weight is limited because DK did not exploit
the expressive value of the images. Although BGA's images are copied in their
entirety, the third factor does not weigh against fair use because the reduced
size of the images is consistent with the author's transformative purpose.
Finally, we conclude that DK's use does not harm the market for BGA's sale of
its copyrighted artwork, and we do not find market harm based on BGA's
hypothetical loss of license revenue from DK's transformative market.

CONCLUSION
34

For the foregoing reasons, we conclude that DK's use of BGA's copyrighted
images in its book Illustrated Trip is fair use. Accordingly, we AFFIRM.

Notes:
*

The Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation

The disputed images appear as follows: (1) on page 76, a concert poster for the
Grateful Dead, Jefferson Airplane, and Big Brother and the Holding Company
playing at the Hollywood Bowl; (2) on page 103, a concert poster for the
Grateful Dead, Jefferson Airplane, and Sons of Champlin playing at the
Winterland Arena; (3) on page 130, a picture of the front and back of a concert
ticket for a show at the Fillmore Theatre, reused for a Grateful Dead concert at
the Winterland Arena; (4) on page 254, a concert poster for Grateful Dead
shows at the Warfield Theatre; (5) on page 361, a concert poster for a Grateful
Dead show at the Oakland Coliseum; (6) on page 397, a concert poster for a
Grateful Dead show on New Year's Eve; and (7) on page 421, a fake in-house
poster for a New Year's Eve 1993 concert

Obviously, the use here is of a general commercial nature rather than a nonprofit nature, but the inquiry is both a broader one and a narrower one than may

appear at first glance as will be explained

3

For example, BGA claims copyright infringement of a concert poster image,

reproduced on page 254 ofIllustrated Trip, depicting two skeletons flanking the
Warfield Theatre. The reader is expected to view this image together with the
text on pages 254 and 255 under the caption, "The Warfield/Radio City
Shows," and with a non-contested image on page 255, depicting two skeletons
flanking the Radio City Music Hall. In this instance, the text specifically
comments on the poster image, explaining:
The Dead's real 15th anniversary celebration in 1980 spanned two months, two
coasts, and eventually two albums .... The bicoastal settings for the shows were
very differentSan Francisco's Warfield Theatre was an intimate house of
2,400 seats, while New York City's Radio City Music Hall was, well, Radio
Citybut the Dead's performances in both produced some of the most
treasured moments of the band's early '80s period .... The [Dead's] otherwise
brilliant Radio City run was marred by a bizarre dispute between the band and
Radio City's management. The latter objected to promotional posters showing
the inevitable skeletons flanking the venerable venue. Evidently not well versed
in Grateful Dead iconography, the Radio City execs interpreted the posters as a
coded message that the band thought that Radio City's days were numbered,
and they slapped the band with a million-dollar lawsuit. The misunderstanding
was quickly cleared up.
The author uses images to enhance the reader's understanding of the statement
that Radio City Music Hall executives were unfamiliar with Grateful Dead
iconography by displaying nearly identical concert promotion posters for the
Warfield Theatre and the Radio City Music Hall.

For example, BGA claims copyright infringement of a concert poster image,

reproduced on page 103 ofIllustrated Trip, promoting a concert at the
Winterland Arena. The reader is expected to view this image together with an
entry on the timeline for October 24, 25, and 26, accompanying text describing
the shows, and a quotation from Bill Graham to the audience on Saturday,
October 25. The text describes the show as follows:
Hot Tuna, Jefferson Airplane, and Sons of Champlin play all three nights. On
Saturday Stephen Stills may have played on "Turn on Your Lovelight." Sunday
marks the last "Doin' that Rag."
While the concert poster image does not necessarily enhance the reader's
understanding of the text, it serves as a recognizable representation of the

concert. It also documents concert information and provides notable historic

details, such as the fact that, at this relatively early stage of its career, the
Grateful Dead received second billing to Jefferson Airplane.
5

To the contrary, had the book been commercially successfulwhich it was not
it might have garnered interest in the original images in full size because the
reduced images have such minimal expressive impact. An afficionado might
seek more than a "peek."

Texaco may also be distinguished because in that case we found that scientific
researchers' copying of scientific journal articles caused those journals to lose
license revenues, because the researchers were looking to their own copies of
the articles rather than downloading them from online databases such as Lexis,
which paid the journals a license fee. See 60 F.3d at 929-32. In other words,
Texaco involved direct evidence that the allegedly infringing use would cause
the owner to lose license revenues derived from a substantially similar use.
Here, in contrast, BGA's direct evidence of its license revenues involves a use
that is markedly different from the use by DK. The licenses BGA sold to other
publishers were for substantially less transformative uses of its posters: fullpage, prominently displayed reproductions of BGA's images, with little
discussion of the images or their historical context, much less any compilation
of other related works into a coherent whole. Indeed, one of the images BGA
points to was used as the cover of a book. DK's use of BGA's images is
markedly more original than the other uses that BGA has licensed and BGA
thus has not shown direct evidence of significant lost license revenue from the
uses at issue here.