Bill Graham Archives v. Dorling Kindersley, Ltd., 448 F.3d 605, is a 2006 case of the United States Court of Appeals for the Second Circuit regarding fair use of images in a pictorial history text.

The case began during the pre-production of Grateful Dead: The Illustrated Trip, a coffee table book published by Dorling Kindersley (DK) that included a wide variety of information and imagery, presented in a timeline format beginning with the band's 1965 founding.

Judge George B. Daniels granted DK's motion for summary judgement in 2005, holding that the use of reduced images to illustrate historic moments in the band's past was sufficiently transformative from their original promotional purpose to make them fair use.

He identified three factors on which a defendant might prevail when accused of infringement: Fair use remained, on those grounds, a purely judicial construction until 1978, when Congress codified them into law with the Copyright Act of 1976.

Section 107 formally recognized fair use, based on case law to that point, providing for the same factors Story identified, with the first one split into "the purpose and character of the use" and "the nature of the work".

[6] Leval also rejected the transformative use claimed by the defendant in American Geophysical Union v. Texaco, since its photocopying for the library at its research center "supersede[s] the original and permit duplication, indeed, multiplication ...

The use of a large poster of artist Faith Ringgold's work in the background on the set of Roc ,[13] a Seinfeld trivia quiz book,[14] and purely decorative eyewear used in a clothing advertisement (in an opinion written by Leval after he was elevated to the Second Circuit) were found not to constitute transformative use.

As a result a strong connection between the band and its fans developed, perpetuating the 1960s counterculture of the San Francisco Bay Area that defined its early years.

BGA sued DK in the Southern District of New York for copyright infringement, seeking as a remedy an injunction against further sales and destruction of the unsold copies in addition to actual and statutory damages.

He thus granted BGA a slight edge, although he acknowledged that "in the context of certain transformative uses", courts had found the second factor of minimal relevance to a fair use claim, such as the Leibovitz and Seinfeld cases.

In Campbell, he noted, the Supreme Court had commented that in cases where a license is ultimately unnecessary will still negotiate with the rights holder as a way to avoid litigation and its costs.

The posters were apparently widely distributed to generate public interest in the Grateful Dead and to convey information to a large number people about the band's forthcoming concerts", Restani wrote.

"In contrast, DK used each of BGA's images as historical artifacts to document and represent the actual occurrence of Grateful Dead concert events featured on Illustrated Trip's timeline.

[24][b] Other images, while they might not have directly enhanced the text, nevertheless served to "graphically [represent] the fact of significant Grateful Dead concert events selected by the Illustrated Trip's author for inclusion in the book's timeline."

She noted how one, of a Winterland Ballroom show in the late 1960s, conveyed a fact not mentioned in the accompanying text: that at that point in their career the Dead were still getting second billing to Jefferson Airplane.

[26] On the second factor, the nature of the work, DK challenged Daniels's finding that it favored BGA, since the posters combined artistic and factual expression and had been widely disseminated for many years.

After rejecting the claim that the loss of licensing revenues BGA would have collected had DK agreed to its terms constituted a cognizable harm by itself, since that is true to some degree in every claim of copyright infringement, Restani distinguished the case from Texaco: "[Since] we hold that DK's use of BGA's images is transformatively different from their original expressive purpose ... 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.'

[31] Photographer Michael Grecco sued Valuewalk, a website that reused without permission or attribution a photo he took of bond trader Jeffrey Gundlach for Barron's in 2011 for its online directory of major figures on Wall Street.

Among many other defenses, Valuewalk claimed transformative use similar to Bill Graham Archives in that it had not just used the photo but had set it on a webpage alongside information and links to articles about Gundlach, including the one Grecco's photograph had appeared in.

"[32][c] In 2018 tattoo artist Catherine Alexander sued Take-Two Interactive over its use of six of her works on the body of professional wrestler Randy Orton as represented in its video game WWE 2K.

Judge Staci M. Yandle of the Southern District of Illinois denied Take-Two's motion for summary judgement, saying that unlike Bill Graham Archives this was a dispute of material fact to be resolved at trial.

[34][d] "The Second Circuit's decision in Bill Graham all but decides this case", wrote Southern District Judge Valerie Caproni in 2020 when dismissing a lawsuit against the Metropolitan Museum of Art over its use of a copyrighted photo of Eddie Van Halen performing in the online catalog of an exhibit on instruments used by rock musicians.

She found the Met's use of the photo "analogous" to DK's use of the Dead posters: it repurposed the image by focusing on the guitar rather than the guitarist, and made up an "inconsequential portion" of the total exhibit.

[36] Jeannine Marques wrote in a 2007 Berkeley Technology Law Journal article that with Bill Graham Archives and its contemporary Blanch v. Koons,[37][e] the Second Circuit had made a statement that transformative use was very important within the fair-use inquiry.

"[I]n both cases," she observed, "the transformative test seems to have shifted the focus of the fair use analysis from providing economic incentives for copyright owners to stimulating the production of new works.

The two decisions might be useful for documentary filmmakers, who frequently have to remove scenes where even short snippets of copyrighted music are used incidentally, even unintentionally, since the publishers regularly charge licensing fees out of range of the low budgets such films are made under.

[39] UCLA law professor Neil Weinstock Netanel agreed in 2011 that Bill Graham Archives "represents a cornerstone in lower courts' belated embrace of the transformative use doctrine".

[40] In a 2015 Fordham Intellectual Property, Media & Entertainment Law Journal article, copyright lawyer Kim G. Landsman identified where he thought the Bill Graham Archives court had erred in a way that expanded transformative use.

In its second-factor analysis, it had quoted from Campbell to justify the limited weight it gave that factor, as "[not] likely to help much in separating the fair use sheep from the infringing goats".

But, Landsman pointed out, in that passage the Supreme Court was referring to parody, the issue in the case, specifically, not transformative use generally as Restani's wording had suggested.