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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Comments on “Movie Monsters, The Grateful Dead… And Fair Use Even In Commercial Use”

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9 Comments
Ben (profile) says:

a court gets it right

… note that it was by Summary Judgement, which means that there was no lengthy trial. I’d just like to see the judge slap them down for claiming trademark on something that is clearly a copyright issue — but the result is certainly welcome; I just hope other judges agree with the argument without it having to go up the chain through the appeals process to have it apply (if not binding) on other courts.

Alan Gerow (profile) says:

Re: Re:

Well, it may stop some people who would purchase back issues to collect the artwork, because they would purchase the book instead that collected the covers as-is.

But then again, instead of a lawsuit, I don’t see why the magazine in question doesn’t collect the artwork from the covers, remove the copy to reveal more of the artwork, and then sell that themselves with the covers at a higher resolution than the book was using (at full magazine dimensions or larger) and release their photo book, possibly work in stories of working with the artist from people who were working at the magazine at the time. Then, interest in the book with its smaller covers, would only work to promote the magazine’s compilation of larger, less obscured covers. And interest in the compilation of covers would create interest in the artist, and take people to the book and original artwork from the artist. Win-win-win, and everybody could cross-promote the products to create a larger market interest in their grouping of related products.

Jay says:

Fair use and copyright

How does a website freely show hundreds of thousands of movie poster images, such as ‘movie poster database’, or a website merely displaying album covers not get sued for copyright? This is just free publicity for the album or film right as it is just an image being displayed? How is this viewed? Will a band sue if an image of their album is shown on a very popular album cover website etc?

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