Google grateful to Dead?

Larry Lessig points to Graham v. Dorling Kindersley (a recent Second Circuit case finding that copying a number of concert posters in a biography of the Grateful Dead was fair use) as good law. Certainly Google's lawyers must have cracked a bottle of champagne: The Second Circuit endorses Kelly v. Arriba Soft, not just in general but in multiple ways, and points to the fact that the copied images are small and are not given any special prominence in the book. On the third factor, use of the whole was okay because the images are small and are scattered widely among other images. On the fourth, just because the plaintiff had been paid for reproductions of its posters in books before didn't mean that it had lost money in a "traditional," as opposed to "transformative," market. And a key footnote, suggesting that a "peek" at the reduced-size poster would help the plaintiffs by enticing readers to buy full-size versions -- well, that's an argument we've heard a lot about in the Google context.

The next footnote takes a little bit back, suggesting that the licensing market in this case was not as well-developed as that in Texaco and specifically discussing the market for LEXIS and other online databases. The CCC, not LEXIS, is usually given prominence in discussions of Texaco; indeed, though the Second Circuit gives a broad cite to three pages of Texaco when it mentions LEXIS, the actual Texaco opinion discusses three non-electronic licensing markets (document delivery services; licenses from publishers; and the CCC, with the CCC the "primar[y]" source of the market). I thus suspect this reference is supposed to scatter some tea leaves suggesting that online uses are different. Even absent that footnote, whether this case's solicitousness for compilers will transfer to Google is, of course, far from certain.