Zlozower v. The Rock & Roll Hall of Fame and Museum, Inc.

District court finds Rock & Roll Hall of Fame’s use of cropped photographs of rock band Van Halen as part of exhibit about instruments used throughout rock and roll history constituted fair use, dismissing photographer’s copyright infringement claim.

Professional photographer Neil Zlozower sued The Rock & Roll Hall of Fame and Museum Inc. for copyright infringement, based on the use of two of his photographs of the rock band Van Halen and its lead singer Eddie Van Halen in an exhibit about the history of rock and roll instruments. Defendant, a nonprofit corporation “with the charitable mission of operating a museum [that] collects, preserves, exhibits and interprets rock-and-roll music as an art form,” asserted a fair use defense. The court granted defendant’s motion for judgment on the pleadings, finding defendant’s use of plaintiff’s photographs was transformative fair use.

A professional photographer who has spent decades taking photographs of legendary rock bands, plaintiff has published six photography books, including Van Halen: A Visual History and Six-String Heroes. His photographs have appeared on magazine covers and on album sleeves. Plaintiff alleged that he took photographs of Van Halen at three live shows and in a backstage photo session prior to a concert in Oakland, and that he created the photographs to “document and memorialize” Van Halen with the intent to use them in “public distribution and display in various forms.” More specifically, plaintiff alleged that he took the photographs at issue to portray the members of Van Halen as a “fun-loving, good-looking party band so that they could tease their fans before the release of their second album.”

The museum created an eight-foot display using a cropped version of plaintiff’s photograph of the entire Van Halen band that removed all the band members except Eddie Van Halen and his guitar. It also cropped a second photograph of Eddie Van Halen alone, in order to highlight his upper body and raised guitar, and added the year he was inducted into the Hall of Fame. Both images were displayed alongside a collection of the musician’s guitars, amplifiers and effects units, interpretive educational text and placards, and a multimedia video interview with Eddie Van Halen, in its “Play It Loud: Instruments of Rock & Roll” exhibit “celebrating the musical instruments that gave rock and roll its signature sound.”

In finding that the museum’s use was transformative fair use, the court noted that the museum’s purpose in displaying the photographs was not the same as plaintiff’s stated intent—to promote the band and emphasize its fun-loving nature. Rather, the museum’s focus was on Eddie Van Halen and his “Frankenstein” guitar, with the purpose of illustrating the significance of the instrument and contextualizing the guitar replicas, speakers and amplifiers that were part of the exhibit. While defendant charged an admission fee, the museum is a nonprofit entity and no fee was charged for the specific exhibit where the photograph was displayed. Any commercial aspect of defendant’s use of the photograph did not outweigh defendant’s transformative use, and therefore the first fair use factor, the nature and purpose of the use, weighed in defendant’s favor.

The court found that the remaining three fair use factors failed to tip the balance away from fair use. The second factor, the nature of the copyrighted work, weighed only slightly in favor of plaintiff. The photographs were clearly expressive and creative, but it was unclear whether they had ever been published. For the third factor, the amount and substantiality of the portion of the work used, the court found that because the museum’s purpose was to illustrate the importance of certain instruments to the history of rock and roll, it was reasonably necessary to use full images of Eddie Van Halen playing his Frankenstein guitar.

Last, the court held that the fourth factor, the effect of defendant’s use on the market for or value of the original works, weighed in favor of defendant. While plaintiff alleged that he licensed unidentified images for use in museums, he did not allege that he had licensed the particular photographs at issue to museums or that the defendant had usurped the market by licensing the photographs to other museums. Therefore, plaintiff had not pled any facts establishing that defendant’s use harmed the market for plaintiff’s photographs.

Summary prepared by Tal Dickstein and Erin Shields