The Long, Strange Trip of Fair Use

I’m consistently impressed by Marty Schwimmer’s ability to post images to illustrate breaking IP legal developments. It’s not always the case, though, that his posts (and images) have a “meta” quality, but that’s true, I think, with his post about Bill Graham Archives v. Dorling Kindersley Publishing. The Southern District of New York ruled in that case that copying Grateful Dead concert posters in thumbnail form, to illustrate a book about the history of the Grateful Dead constituted fair use, on the basis of a fairly conventional application of the four fair use factors. The use is “transformative” (first fair use factor) and the use doesn’t usurp a licensing market that the plaintiff has the right to monopolize (fourth factor), so the court gets where it wants to go, even if the discussion isn’t particularly illuminating or (despite the fact that I agree with the outcome) persuasive.

Helpfully, particularly for readers who aren’t familiar with the extraordinary poster art that accompanied the 1960s music scene in San Francisco, the post about the case is illustrated with a larger-than-thumbnail version of a Bill Graham Presents concert poster, promoting the Jefferson Airplane. I suspect that the copyright to the underlying poster is owned by the Bill Graham Archives. I don’t know whether Marty Schwimmer received the appropriate permission to post the image. Let’s assume that he didn’t. Is his reproduction and distribution of the work of authorship represented in the image fair use? A blog post isn’t nearly as “transformative” as a biography of the band (is that too quick — is this a “journalistic” use of the work?), and BGA clearly licenses the poster art for digital online use. Yet I think that this is just as fair and noninfringing as the Grateful Dead biography. It’s fair use to reproduce a work for the express purpose of blogging about fair use, perhaps? That’s an intuitively sensible notion at its core, but it’s also easy to see how it could get out of hand pretty quickly.