# Bill Graham Archives v. Dorling Kindersley: When Copying Whole Works as Historical Artifacts Is Fair Use

> The Second Circuit held reduced-size Grateful Dead posters in a band biography were transformative fair use, and lost license fees alone were not market harm.

Topic: Copyright  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/bill-graham-archives-v-dorling-kindersley-historical-fair-use/


*Bill Graham Archives v. Dorling Kindersley Ltd.*, 448 F.3d 605 (2d Cir. 2006), is the decision that gave documentary and historical publishing its clearest fair-use charter. The Bill Graham Archives, keeper of the concert-promotion empire of the legendary rock impresario, sued the publisher of a Grateful Dead coffee-table biography for reproducing seven of its copyrighted concert posters and tickets without a license. The Second Circuit affirmed summary judgment for the publisher, holding that using the images "as historical artifacts" to document concert events on a biographical timeline was transformatively different from their original promotional purpose, even though each image was copied in its entirety and the parties had negotiated, and failed to agree on, a license fee.

Two propositions from the opinion now do constant work in publishing, archival, and museum practice. First, copying a whole image can be fair use when reduced size and layout tailor the taking to a transformative documentary purpose. Second, a rights holder cannot manufacture factor-four market harm out of the license fee it would have charged for the very use being challenged.

## At a glance

- **Case:** *Bill Graham Archives v. Dorling Kindersley Ltd.*, 448 F.3d 605 (2d Cir. 2006), Docket No. 05-2514-CV
- **Decided:** May 9, 2006 (argued January 4, 2006); opinion by Judge Jane A. Restani, Chief Judge of the Court of International Trade, sitting by designation, joined by Circuit Judges Kearse and Raggi; affirming Judge George B. Daniels, S.D.N.Y., 386 F. Supp. 2d 324 (2005)
- **Holding:** Reproducing seven Grateful Dead posters and tickets in significantly reduced form, as historical artifacts on the timeline of a 480-page band biography, was fair use under 17 U.S.C. § 107; lost licensing revenue from a transformative market is not cognizable factor-four harm.
- **Status:** Final. No rehearing or Supreme Court review; the case remains foundational circuit law, cited throughout later fair-use decisions on documentary and archival uses.

## A coffee-table book, a failed negotiation, and a lawsuit

In October 2003, Dorling Kindersley, working with Grateful Dead Productions, published *Grateful Dead: The Illustrated Trip*, a 480-page cultural history of the band. The book runs as a continuous timeline, combining more than 2,000 images with explanatory text in collage-style page layouts. Seven of those images, concert posters and tickets from venues like the Hollywood Bowl, the Fillmore, and the Warfield Theatre, belonged to the Bill Graham Archives.

The publisher did not simply take the images. In May 2003 the CEO of Grateful Dead Productions wrote to the archive seeking permission; the archive countered by asking for rights to make CDs and DVDs from concert footage in its own holdings. Dorling Kindersley then negotiated directly, but the parties could not agree on a fee. The publisher went to press anyway, reproducing the seven images in significantly reduced form with captions describing the concerts they represented. When it refused the archive's post-publication fee demands, the archive sued for infringement, seeking an injunction, destruction of unsold copies, and damages. Judge Daniels granted summary judgment to the publisher on fair use, and the archive, represented by the copyright treatise author William F. Patry, appealed.

## Factor one: historical artifacts and the biography tradition

The Second Circuit's analysis turned almost entirely on the first statutory factor, the purpose and character of the use, and on the "transformative" inquiry that *Campbell v. Acuff-Rose Music, Inc.*, 510 U.S. 569 (1994), placed at its center. The court situated the book within a long line of authority giving biographies latitude to incorporate source material, citing *Salinger v. Random House, Inc.*, 811 F.2d 90 (2d Cir. 1987), and Judge Jacobs's dissent in *American Geophysical Union v. Texaco Inc.*, 60 F.3d 913, 932 (2d Cir. 1994).

The posters were created for "dual purposes of artistic expression and promotion": to generate interest in the band and publicize upcoming shows. Dorling Kindersley used them for something categorically different, as "historical artifacts to document and represent the actual occurrence" of the concerts on the book's timeline. The court rejected the archive's argument that a use is transformative only if it comments on or criticizes the artistic merits of the copied work. Documenting history is itself a transformative purpose; the publisher "was not required to discuss the artistic merits of the images."

Three features of the execution reinforced the conclusion. The images were drastically reduced, a move the court supported by citing *Kelly v. Arriba Soft Corp.*, 336 F.3d 811 (9th Cir. 2003), on thumbnail-sized images: the small size was "sufficient to permit readers to recognize the historical significance of the posters" but "inadequate to offer more than a glimpse of their expressive value." They were embedded in collage layouts with a prominent timeline, text, and original graphic art, and the publisher never used the posters in advertising. And the taking was quantitatively trivial: the seven images appear on only seven pages of a 480-page book, none occupies more than one-eighth of a page, the largest reproduction measures under 3 by 4.5 inches (less than one-twentieth of the original), and together the images account for less than one-fifth of one percent of the book. Although the book was plainly commercial, the court invoked *Harper & Row, Publishers, Inc. v. Nation Enterprises*, 471 U.S. 539 (1985): the crux of the commercial inquiry is whether the user profits from exploiting the copyrighted material without paying the customary price, not whether the enterprise makes money.

## Factors two and three: creative works, copied whole, and still fair

The second factor, the nature of the copyrighted work, favored the archive, since concert posters are creative artworks at the core of copyright protection. But the court gave it limited weight, echoing *Campbell*'s caution that factor two rarely separates "the fair use sheep from the infringing goats" when a creative, publicly known work is used transformatively, and distinguishing *Ringgold v. Black Entertainment Television, Inc.*, 126 F.3d 70 (2d Cir. 1997), where a poster served the same decorative purpose as the original.

On the third factor, the archive pressed the seemingly powerful point that every image was copied in its entirety. The court answered that "the extent of permissible copying varies with the purpose and character of the use," quoting *Campbell*, and that copying an entire image is sometimes necessary to make any fair use of it at all, citing *Kelly* and *Nunez v. Caribbean International News Corp.*, 235 F.3d 18 (1st Cir. 2000). Because the publisher displayed "the minimal image size and quality necessary to ensure the reader's recognition of the images as historical artifacts," the third factor did not weigh against fair use. The lesson practitioners draw from this passage is that factor three measures tailoring, not raw percentage.

## Factor four: the licensing-market argument and its circularity problem

The fourth factor produced the opinion's most consequential doctrine. The parties agreed the book did no harm to the archive's primary market for selling posters. The archive instead claimed injury to its licensing market: it had an established business licensing poster images for books, and the publisher's refusal cost it royalties.

The court accepted that impact on potential licensing revenues is a proper factor-four consideration under *Texaco*, but only for "traditional, reasonable, or likely to be developed markets." It then exposed the circularity in the archive's position: if lost fees for the challenged use itself counted as market harm, the fourth factor "would always favor the copyright holder," since by definition every fair use involves an unpaid royalty. Quoting *Castle Rock Entertainment, Inc. v. Carol Publishing Group*, 150 F.3d 132 (2d Cir. 1998), the court held that a copyright holder cannot prevent others from entering fair use markets merely "by developing or licensing a market for parody, news reporting, educational or other transformative uses of its own creative work," and that "[c]opyright owners may not preempt exploitation of transformative markets." The licenses the archive had actually sold were for markedly different, less transformative uses: full-page, prominently displayed reproductions, one of them a book cover. And under footnote 18 of *Campbell*, willingness to pay license fees does not establish that a publisher may not, in the alternative, make fair use.

## Where the decision sits after Warhol

*Bill Graham Archives* became a workhorse citation for archives, museums, and documentary producers, and its factor-four reasoning underpins later landmarks such as *Authors Guild v. Google, Inc.*, 804 F.3d 202 (2d Cir. 2015). The Supreme Court's decision in *Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith*, 598 U.S. 508 (2023), narrowed transformativeness where the secondary use shares the same commercial purpose as the original. But *Warhol* expressly preserved uses with a further purpose or different character, and a reduced-size poster documenting a 1967 concert on a biography's timeline is no substitute for licensing the poster as decor or cover art. Courts continue to treat *Bill Graham Archives* as good law for genuinely documentary uses as of July 2026.

## Open questions

The opinion left the boundary between a "traditional" and a "transformative" licensing market undefined at the margins. Rights holders responded by building licensing programs that cover historical and editorial uses, hoping to convert transformative markets into traditional ones; the opinion does not say whether a sufficiently established program of licensing documentary uses would change the factor-four calculus. Nor does it quantify how much visual prominence a historical reproduction can take on before it stops being an artifact and becomes decoration. Finally, *Warhol*'s purpose-matching test invites renewed argument about biographies that compete with authorized illustrated histories, an issue the 2006 panel never faced because Grateful Dead Productions itself collaborated on the book.

## Implications for creators and businesses

- **Documentary purpose is a genuine fair-use lane.** Publishers, filmmakers, and curators who reproduce copyrighted images to document that an event happened, rather than to resell the images' expressive appeal, have strong first-factor footing, especially when the works are historical artifacts of the events depicted.
- **Tailor the taking and keep records of it.** The publisher won in large part because of execution: drastically reduced size, one-eighth of a page or less, collage placement, no use in advertising. Design choices that cap the expressive payload of copied material are evidence of transformative purpose.
- **A failed negotiation is not an admission.** Seeking a license first, and walking away when the price is wrong, does not forfeit fair use. Businesses can negotiate without fear that the attempt will be held against them.
- **Rights holders cannot rely on fee demands as proof of harm.** To show factor-four injury, an owner needs evidence of impairment to a traditional or likely-to-be-developed market, such as substitution for its actual licensing business, not just the royalty it would have charged the defendant.

## Frequently asked questions

**Why was copying entire Grateful Dead posters ruled fair use?** Because the purpose was transformative. Dorling Kindersley used the posters not for their original promotional and artistic purpose but as historical artifacts documenting concert events on a biographical timeline. The images were drastically reduced in size, occupied less than one-fifth of one percent of a 480-page book, and did not substitute for poster sales or for the licensing markets the archive had actually developed.

**Does a failed license negotiation defeat a later fair use defense?** No. The Second Circuit, following footnote 18 of Campbell v. Acuff-Rose, held that a publisher's willingness to pay license fees does not establish that it may not, in the alternative, make fair use of the images. Being denied permission, or abandoning a negotiation, does not weigh against fair use.

**What is the difference between a traditional market and a transformative market under factor four?** Factor four protects traditional, reasonable, or likely-to-be-developed markets, such as the archive's established business of licensing full-page poster reproductions. It does not protect a claimed market for licensing the very transformative use at issue, because that reasoning is circular: every fair use involves an unpaid royalty. Copyright owners may not preempt exploitation of transformative markets.

## Authorities and sources

- [*Bill Graham Archives v. Dorling Kindersley Ltd.*, 448 F.3d 605 (2d Cir. 2006) (full opinion PDF)](https://www.law.berkeley.edu/files/Bill_Graham_case.pdf)
- [U.S. Copyright Office Fair Use Index summary of *Bill Graham Archives v. Dorling Kindersley*](https://www.copyright.gov/fair-use/summaries/billgraham-dorling-2dcir2006.pdf)
- [17 U.S.C. § 107 (Cornell Legal Information Institute)](https://www.law.cornell.edu/uscode/text/17/107)
- [*Bill Graham Archives v. Dorling Kindersley* opinion text, 448 F.3d 605 (public.resource.org)](https://law.resource.org/pub/us/case/reporter/F3/448/448.F3d.605.html)
- [*Bill Graham Archives v. Dorling Kindersley, Ltd.* (Wikipedia)](https://en.wikipedia.org/wiki/Bill_Graham_Archives_v._Dorling_Kindersley,_Ltd.)
- [Cowan, Liebowitz & Latman, "Use of Images of Grateful Dead Concert Posters in Book Held to be Fair Use" (counsel for the prevailing publisher)](https://www.cll.com/newsroom-news-Use_of_Images_of_Grateful_Dead_Concert_Posters_in_Book_Held_to_be_Fair_Use)
- [*Campbell v. Acuff-Rose Music, Inc.*, 510 U.S. 569 (1994) (Cornell LII)](https://www.law.cornell.edu/supct/html/92-1292.ZO.html)