Long Strange Trip

The New York Law Journal ($) reports on a Second Circuit decision holding that reproductions of seven concert posters in a book on the Grateful Dead was a fair use. The publisher had tried to get a license to use the images from the copyright-holder, but went ahead and used them when permission was refused. A friend who is an eminent copyright lawyer emailed to say the opinion is "smart and important," but I'm not so sure, at least about the "important" part. The decision strikes me as just another case-specific application of the four fair use factors. This court found they tipped in the defendant's favor, but one can just as easily imagine another court coming to the opposite conclusion on the exact same facts. So things are just as uncertain as they were before this decision. No one really knows whether or not a given use is permitted. At the end of the day, the best definition of "fair use" remains Larry Lessig's: the right to hire a lawyer.