Movie Monsters, The Grateful Dead... And Fair Use Even In Commercial Use

from the good-news-for-fair-use dept

There's some good news on the fair use front. Many people seem to falsely believe that if a work is used for commercial purposes it cannot be fair use. They think fair use only applies to non-commercial efforts. But that's not true. Commercial use is factored into the analysis, but just because it's commercial does not mean that it's not fair use. A few years ago, an important case made this point, involving Grateful Dead concert posters that were used in a book. The Bill Graham Archives, who owned the posters in question, claimed that because the book was published commercially, it wasn't fair use. But the court ruled that even though the images were used commercially, and even though they were used in their entirety without modification, the fact that they were used in the context of a book describing the history of the band, made it fair use.

It looks like we now have another, quite similar, ruling -- this time involving movie monsters, and whether or not magazine covers could be used in a book. And, once again, a court has ruled that this is fair use, despite the commercial nature. In this case, the book was a look at the artwork of Basil Gogos, who apparently designed numerous magazine covers concerning monster movies in the 1950s and 60s. The magazine publisher claimed that the use of the magazine covers in the book violated its copyrights and trademarks, but the judge ruled that this was fair use, noting that the use (if not the works) was transformative. That is, the original works were designed for use as magazine covers, but this use -- as a biographical and retrospective look at the artist -- was entirely different.

"The fact that the Gogos book is inherently biographical renders it so fundamentally transformative in nature, coupled with the fact that Spurlock utilized such a quantitatively and qualitatively minor portion of the magazines, requires this court to conclude that Spurlock's use is fair use and to grant Spurlock's motion for summary judgment on the copyright claims,"

This is definitely an important fair use ruling, though will likely still go through appeal. Hopefully, it'll be allowed to stand.

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Grateful Dead Publisher Prevents Novelist From Quoting Lyrics

from the jerry-garcia-is-rolling-in-his-grave dept

The decades-long success of the Grateful Dead is a perfect example of how a band can make music without relying on the copyright crutch (by encouraging free sharing of the music, while making most of their money on concert tickets and merchandise). In the years since Jerry Garcia passed away, however, the band's name seems to keep coming up in copyright disputes. The band itself sued Wolfgang's Vault for offering videos and concert posters of the band (Wolfgang's Vault is based on the "archives" of famed concert promoter Bill Graham, and each side claims ownership to the rights of promotional materials from the concerts). And, of course, Wolfgang's Vault is hardly an innocent player here, having sued the publisher of a book about the Grateful Dead for using thumbnail images of concert posters. Luckily, the book publisher won that case, but both of these cases show how a system that works (i.e., the Grateful Dead's business model) gets all screwed up when people start asserting ownership rights to content.

The latest example is much more ridiculous and much more damaging to creativity. Last week we wrote about how copyright is often used to hold back creativity, and this is a perfect example. Boing Boing points us to this story about how Ice 9 Publishing, the in-house publishing arm of the Grateful Dead has stopped a young adult novelist from using lyrics from their songs in his novel. It sounded like a rather creative use of Grateful Dead lyrics in such a way that would likely help attract a new generation of fans to the Dead's music. In fact, the title of the book was originally supposed to be a Grateful Dead song title, but Ice 9 objected to that, too. Even though it couldn't stop the book from using a song title as the book title, it threatened to not allow the use of other quotes in the book if the title wasn't changed.

This makes very little sense, as it's difficult to see what legal ground Ice 9 and the Dead have to stand on here. The use of these lyrics hardly harms the commercial potential of the Grateful Dead -- and, almost certainly increases it. But, just the threat of potential copyright infringement lawsuits means that this book is not the book the author, J.T. Dutton, intended, and everyone is worse off for it. And, that's yet another unfortunate example of copyright holding back creativity, rather than encouraging it.

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Grateful Dead Label Demands NPR Feature Story To Blog A Grateful Dead Song

from the seems-a-bit-extreme dept

If you haven't followed the "MP3 blogging" scene, it's grown quite big over the past few years, to the point that most folks (including the record labels) have effectively turned a blind eye to the copyright questions it raises (for once, this is a good thing). In many cases, record labels even treat some of the best music bloggers similar to the way they've always treated radio DJs -- sending them promo CDs and trying to get "air time." Most music bloggers don't ask for permission before blogging songs (some have policies saying they'll take down a song if any musician complains). However, over on an NPR blog, one of the bloggers has been putting together "mixes" of music on the blog, and being quite careful to ask for permission before any song is included. As BoingBoing points out, when the blogger, Carrie Brownstein, asked the Grateful Dead's label if she could use a Grateful Dead song, the response was a rather pompous demand that the band would require a piece done on the band on the radio show All Things Considered as well as a feature about the Grateful Dead on the NPR website. Just for using a song in a way that many would say was fair use (not to mention that it would be from a band that actively encouraged fans to tape and share its music broadly). If anything, it sounds like the record label overreaching in seeing an opportunity to get more press for a band that hardly needs any more. But, on the whole, it shows the sort of attitude that's becoming all too pervasive these days when people need to ask "permission" to help promote a song or a band.

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