Wendy Gordon speaks about the Graham Archive case

I went to a presentation by Wendy Gordon “Circularity in Fair Use: The Puzzle of Foregone License Fees" (http://www.bu.edu/law/faculty/profiles/resume/full-time/gordon_w.html) yesterday. Her presentation was about licensing and Fair Use, and she called our attention to the Graham Archives case. Her position is that the Graham case clarifies the Michigan Document Services case. In Michigan Document Services (MDS), a copy shop in Ann Arbor was sued for producing course packs. The use was held to be not a fair use. Part of the court’s reasoning was that if licensing was available for the material in the course packs, then it should be used, or otherwise, the availability of licensing makes the use less likely to be a fair use. Gordon talked about how that is problematic, because any use potentially impacts a potential market, even if that market does not yet exist. One of her examples was that if someone in your neighborhood had major landscaping done such that your house increased in value by $5000.00, and you gave the neighbor a cut of $2000.00 of that $5000.00 because of the increased value, could the neighbor then sue all the other neighbors because they too had benefited from the landscaping? This is potentially a scenario that could come out of mandatory licensing replacing fair use, she said.

The Graham case (2nd circuit) involved the use of Grateful Dead posters (reduced in size) featured in a timeline within a book.

“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.”

Graham Archives, the copyright holder of the posters, sued for copyright infringement. Previous to the book’s publication, DK had contacted the copyright holder for license, but they could not agree on the amount, so DK went ahead and published the book anyway. The court held that while licensing was available for the posters, the use was transformative enough to be a fair use, and therefore the alleged infringer did not have to obtain a license.

The case is easy to read, and contains an interesting rather comprehensive run down of the four factor analysis.

Bill Graham Archives v. Dorling Kindersley Limited, Dorling Kindersley Publishing, Inc. and RR Donnelley & Sons Company. USCA 2nd Circuit. Decided May 9, 2006.

Princeton University Press v. Michigan Document Servs., Inc. (1996). 1996 FED App. 0357P (6th Cir.) Retrieved April 17, 2005, from http://fairuse.stanford.edu/primary_materials/cases/michigan_document_se....