Smith prevails for a number of reasons. The use of the posters in the book is for a historical or scholarly examination of a successful band that has performed hundreds of shows in public. The use of the posters, at the tremendously reduced size in the book, does not in ANY WAY, at all, diminish the value of original posters held by collectors, and may in fact, serve to ELEVATE the demand for, interest in, and retail value of, original posters. There is NO INTENT TO DECEIVE or to confuse the public by using the posters in a book: the public will NOT be mislead in to believing the poster announcing the November 5, 1985 showing at The Whiskey a Go-Go is in fact advertising a current or future performance of another group or band,and the posters are clearly not "posters", but rather part of the historic record of the band's long public career. Since the posters were originally used as advertising for the band, and the same photographer shot them all, printing the small, book-sized images of the advertising the band used over a 30-year period can easily be justified by the book's author, and by the court, as a perfectly acceptable valid form of artistic criticism. The author of the book is also not trying to profit from the sale of the images per se, but rather is using the images as a small part of a much larger work, that being the book chronicling 30-year history of the band.