District court holds that display of plaintiff’s photograph of guitarist Eddie Van Halen in museum’s online catalog for rock ’n’ roll exhibition constituted fair use, opining that use of photograph to place Van Halen’s famed “Frankenstein” guitar in historical context was transformative.
Plaintiff photographer Lawrence Marano brought a copyright infringement claim against the Metropolitan Museum of Art, alleging that the museum used his photograph of guitarist Eddie Van Halen as part of a publicly available online catalog on the Met’s website without his authorization. The online catalog was generated in connection with a physical exhibition at the Met called “Play It Loud: Instruments of Rock & Roll,” which “examine[d] the instruments of rock and roll” from “[o]ne of the most important artistic movements of the twentieth century.” The photograph, which featured Van Halen performing live, allegedly appeared as an enlargeable thumbnail beside several other photographs of the famed “Frankenstein” guitar—which Van Halen pieced together from modified factory seconds and mismatched odd-lot parts—and with text providing information about the guitar, such as the materials it was made of and its dimensions.
Two days after plaintiff filed his complaint, the district court ordered him to show cause why his claim should not be dismissed under the fair use doctrine. After considering the parties’ submissions, the court dismissed the claim and held that the Met’s use of the photograph was fair. In doing so, the court relied principally on Bill Graham Archives v. Dorling Kindersley, Ltd., in which the Second Circuit held that the use of copyrighted images of Grateful Dead posters in a coffee table book that provided a cultural history of the band was transformative and therefore constituted fair use.
Considering the first fair use factor—the purpose and character of the use—the court held that the Met’s use was transformative for the same three reasons as in Bill Graham. First, the purpose of the Met’s use was “entirely different” from plaintiff’s original purpose for creating the photograph: Plaintiff created the photograph to show what Van Halen looks like in performance and to portray the band as “groundbreaking and unorthodox,” while the Met used the photograph to reference and contextualize the guitar that was the focus of its exhibition. Second, just like the defendant in Bill Graham, the Met used the photo in a “scholarly context.” Here, the museum displayed the photograph on the “biographical page for the exhibition object—the very instrument depicted in the Photo—in order to ‘document and represent the [use of the guitar]’ that ‘spawned legions of copies . . . and inspired generations of fans to design their own instruments.’” Third, much like the concert posters in Bill Graham, the photograph here constituted an “inconsequential portion” of the Met’s work, having been surrounded by pages of navigable textual, visual and audio content, and located several page-clicks within the online catalog of 185 object images.
Plaintiff argued that the Met’s use was not transformative because the exhibition did not critique the artistic merits of the photograph. The court, however, rejected this argument, stating that plaintiff “misunderstands the nature of inquiry.” It held: “What is relevant is not whether the exhibition comments on the Photo per se, such as the photographer’s choice of lighting or focus, but whether it uses the Photo to help illustrate the historical significance of the guitar—a separate and distinct purpose from the Photo’s original expressive purpose.” The court also rejected plaintiff’s argument that because the Met charges out-of-towners for admission to the museum, its use of the photograph was commercial in nature. Even if the photograph inspired people to visit the museum and pay admission, the court opined, this fact would be insignificant “due to the transformative nature of the secondary use."
Having determined that the Met’s use was transformative, the court dispensed fairly quickly with the remaining fair use factors. As to the second factor, the nature of the copyrighted work, the court recognized that the photograph was “indisputably creative and published.” But it added, “While ordinarily the creative nature of the Photo would weigh in favor of the copyright holder, the second factor has limited weight in this analysis because the transformative purpose of the Met’s use ‘was to emphasize the [Photo’s] historical rather than creative value.’”
As to the third factor, the amount and substantiality of the portion used, the court held that although the Met displayed the photograph in full, “such use is reasonable in light of the purpose and character of the use.” In other words, because the Met used the photograph as a historical artifact providing visual context for the guitar and the accompanying factual information about it, it was reasonable for the Met to have included the photograph in its entirety. The court also opined that reducing the size of the photograph and mixing it with text and other photographs in the catalog “limit[ed] the visual impact of the Photo’s artistic expression.”
Finally, as to the fourth factor, the court rejected plaintiff’s argument that museums are a potential market for his work because they are shifting toward more modern pop-culture-centered exhibits. In the court’s view, a “traditional market” for the photograph would be collectors of photographs of rock legends or other persons seeking to showcase Van Halen. Even “[b]eing generous,” the court stated, the market for the photograph might include museums exhibiting musicians—not museums exhibiting instruments. The Met’s use of the photo to visualize the Frankenstein guitar “as played by Van Halen” falls into a different, transformative market, the court opined, and is thus unlikely to impact the markets for the photograph’s original expressive purpose.
Summary prepared by Frank D’Angelo and Lyndsi Allsop
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