Collage of 1950s Magazines: Fair Use?

Dear Rich: I want to photograph a collage of magazines from the 1950s and reproduce it in a book about the ‘50s. Does this count as fair use – transformative? Putting aside our usual boilerplate response -- fair use can only be determined by a judge or arbitrator -- we think your use is likely to qualify. Our conclusion is based on a few fair use cases: In Warren Publishing Co. v. Spurlock, a Pennsylvania court ruled that it was fair use to reproduce covers of several out-of-print monster magazines from the 1950s, ’60s, and ’70s. The covers were used in a biography of the cover artist. In Bill Graham Archives v. Dorling Kindersley Ltd., the Second Circuit ruled that it was a fair use to reproduce thumbnail-sized Grateful Dead concert posters within a book. In Kelly v. Arriba-Soft and in Perfect 10, Inc. v. Amazon. com, Inc., the Ninth Circuit ruled that thumbnail-sized reproductions qualified as a fair use. Based on these cases, you are likely to successfully claim fair use if the images are used for a purpose other than selling magazines, if the magazines are out-of-print, and if the reproduced covers have been reduced in size.