Artwork in Artist Biography Fair Use: A Monstrous Copyright Decision

You are an artist, an architect, a photographer or anyone working in the creative arts. You'd like to use works you've created in a career retrospective, autobiography, part of your portfolio. You are writing a biography of someone who works in the creative arts. Do you have to pay to license full color images of the works?

The leading case is Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006), involving a book on the Grateful Dead. In that case, images reduced and put on a timeline in a book about the Grateful Dead were held to be fair use, even though the publisher tried to license the works and was rejected.

But what about large color reproductions? A recent fair use case from the Eastern District of Pennsylvania by District Judge Bayleson, Warren Publishing v. Spurlock, 2009 WL 2412542, --- F. Supp.2d --- (August 4, 2009) tackles the issue in a thoughtful, thorough and monster-sized decision.

Basil Gogos illustrated cover art for monster movie magazines such as Creepy and Eerie. Spurlock wanted to write a biography of Gogos and show images of his poster art.

The decision goes into issues regarding the work-for-hire doctrine, the Copyright Act of 1909, the bankruptcy of the original publishers, battles of the experts, in all of the case's horrific details.

In the end, the use of full-color and large images of background art were found to be fair use in an artist's biography. The original magazines were about promoting Bela Lugosi and Dark Shadows, not Basil Gogos.

For those who claim that artists have been taken advantage of by greedy corporations who keep their out-of-print content under lockdown, this is a clear, resounding victory and a well-reasoned decision.

An important factor in the court's decision was the publisher's failure to exploit the coffee-table market for a perior of 22 years. In the age of Google, the culture of "use it or lose it" is taking hold.

The Copyright Wars proceed apace with a new folk devil to create a moral panic.

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