—although "copying of an entire work [does not] favor [] fair use [,]... courts have concluded that such copying does not necessarily weigh against fair use because copying the entirety of a work is sometimes necessary to make a fair use of the image."

—the second factor may be of limited usefulness where the creative work of art is being used for a transformative purpose

However, "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.'"

This is indeed a transformative use, as the "purpose in using the copyrighted images... is plainly different from the original purpose for which they were created."

—finding that use of reproductions of Grateful Dead concert posters in a biography of the band was fair use because they were "historical artifacts" within context of the biography and thus had a transformative use

"The ultimate test of fair use is whether the copyright law's goal of promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it."

Bill Graham addressed the unlicensed use of seven images included in a coffee table book about the Grateful Dead.

—stating that a defendant is "not required to discuss the artistic merits" of the original image to satisfy the first factor

To determine whether the secondary use is transformative, the "question is whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message."

In determining whether such a licensing market exists, we look to "the impact on potential licensing revenues for traditional, reasonable, or likely to be developed markets."