The Second Circuit and the Ninth Circuit each released a big fair use case this month: Bill Graham Archives v. Dorling Kindersley Ltd. in the Second Circuit, and Wall Data Inc. v. Los Angeles County Sheriff’s Department in the Ninth Circuit. (Links to come later.) [UPDATE: Thanks to Kevin for providing links in Comment 1.]

BGA v. DK involved the use of reduced sized images of Grateful Dead concert posters in a biography of the band. The court affirmed the district court’s grant of summary judgment to the defendant. This was fair use. Wall Data involved use of a computer program by a license that was at least arguably beyond the scope of the parties’ express license. The district court granted the plaintiff’s summary judgment motion regarding the sheriffs’ fair use defense. The court of appeals affirmed. This was not fair use.

While it’s tempting to see every new fair use case as somehow advancing or limiting the fair use “cause,” and we’d like to know how each new case reads on the big fair use controversies of the day, I don’t read anything remarkable in either opinion, and I don’t see any leaves that we can use with confidence to predict what will happen in the Google Book Search litigation (or the new XM receiver case, or the Cablevision remote-storage DVR case), at least in each court’s methodical application of the fair use statute. DK’s Grateful Dead biography blended poster art with authentic biographical material and didn’t disrupt any market expectation of BGA. The Sheriff’s Department had a commercial licensing relationship with Wall Data that could easily have accommodated the kind of technological rearranging that the Department did.

What is interesting, though, and possibly relevant to later cases, is the very different tone that each panel adopted. Even if the outcomes of these two cases are correct (and I think that they are, at least on fair use grounds), the Second Circuit’s opinion is clearly and simply more solicitous of the idea of fair use than the Ninth Circuit’s opinion is.

From the Ninth Circuit, this relatively restrictive caution:

As we balance these factors, we bear in mind that fair use is appropriate where a reasonable copyright owner would have consented to the use, i.e., where the custom or public policy at the time would have defined the use as reasonable. Subcomm. on Patents, Trademarks & Copyrights of the Sen. Comm. on the Judiciary, 86th Cong., 2d Sess., Study No. 14, Fair Use of Copyrighted Works 15 (Latman) (Comm. Print 1960).

And from the Second Circuit, this relative expansive summary of its conclusions:

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.

Interestingly, while the Ninth Circuit cited Alan Latman’s famous report on fair use, the late Professor Latman’s firm was on the losing winning side in the Second Circuit. [Corrected per the Comment of Richard Dannay, below.]