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Dorling Kindersley Copyright Case
Summary of Dorling Kindersley Copyright Case
A court case, Bill Graham Archives vs. Dorling Kindersley (DK), can be used as an example to illustrate "transformative use." The ruling on this case occurred in May, 2006.
The publishing company, Dorling Kindersley (DK), known for publishing large, heavily illustrated books, wanted to publish a book on the Grateful Dead. Their intent was to show the history of the group in a timeline using photo collages and text on each page. Before publishing the book, DK contacted a company called the Bill Graham Archives in order to get permission to reproduce several posters and also images taken from the events' tickets. The Bill Graham Archives owns one of the largest collections of original posters in the world, many from rock concerts. The Archives wanted to charge what DK felt was an excessive amount of money so DK decided to include reproductions of the posters and tickets in their book without paying the fee. The book, called Grateful Dead: The Illustrated Trip, was published in 2003. It uses over 2,000 images from concerts, tickets, and the lives of the band members.
The Bill Graham Archives sued DK for copyright infringement. DK insisted that their use of the copyrighted work constituted a fair use under the Copyright Act of 1976. The U.S. District Court for the Southern District of New York ruled that it was fair use. The Archives took it to another level. The Second Circuit Court, one level below the Supreme Court, also ruled in favor of DK. In their opinion DK did not have to ask permission or pay a fee to use the images from the Bill Graham Archives since they were using the the materials under the Fair Use Doctrine.
So why is this so? The judges basically looked at the four factors of Fair Use: (1) purpose and character of the use; (2) nature of the copyrighted work, (3) the amount and substantiality of the part in relation to the copyrighted work as a whole, and (4) the effect upon the potential market for or value of the copyrighted work.
The judges also considered whether the DK book was "transformative" in nature. In other words, did it add something new? Did it have a different purpose or character than the original copyrighted work? Did it change the work and give it a new meaning or message? The poster images were designed to interest people and to persuade them to buy tickets to the concerts. DK used the images as a biographical and historical perspective on the Grateful Dead. They were placed creatively in the book on a small timeline, which is different from the commercial use of the images on posters or tickets. In essence, the court ruled that because the works were transformed--i.e., they were displayed in the book to commemorate historic events, were creatively displayed, and were printed significantly smaller than the originals--then it was fair use for DK to use them.
Hobbs, Renee. Copyright Clarity. Thousand Oaks, CA: Corwin & NCTE, 2010.
Last Updated: 14 November 2013