The Second Circuit has affirmed the Southern District’s ruling in the Grateful Dead posters case, which we blogged about here.
Wrote the Circuit:
On balance, we conclude, as the district court did, that the fair use factors weigh in favor of [book publisher] 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 [plaintiff] 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.