A district court in New York recently dismissed a complaint by a Florida photographer for willful copyright infringement over a photo taken at a Van Halen concert years ago. Photographer Lawrence Marano (“Marano”) owns the copyright to a photo taken of Eddie Van Halen playing his custom made guitar named “Frankenstein” at a concert. The Metropolitan Museum of Art (“Met”) included the photo in its online catalog for an exhibition examining the instruments of rock and roll. The images in the online catalog page are shown below. The image in question is the third thumbnail image from the bottom left depicting Eddie Van Halen playing the guitar.
The exhibition was entitled “Play It Loud: Instruments of Rock & Roll” and ran from April 8-October 1, 2019. The exhibition featured over 130 various instruments from over 80 renowned rock musicians. Eddie Van Halen made the well known Frankenstein guitar having characteristics from both Gibson and Fender guitars.
Marano argues that the Met’s use of the image in their online catalog is willful infringement of his copyright in the photo. In response, the Met asserts that its use of the photo constitutes fair use, not willful infringement.
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or the value of the copyrighted work.
With regard to the first factor, courts look to the transformative nature of the work. The more transformative the new work, the less significance of the other factors against a fair use finding. Transformative works add or communicate something new as compared to the original. The use can be a different purpose or function without physically altering the original work.
In this case the court relied on the Second Circuit decision in Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 608 (2d Cir. 2006). That case concerned a coffee table book about the Grateful Dead containing unlicensed images of concert posters as part of a timeline of the band’s history. The Second Circuit Court found that the original concert posters fulfilled the dual purposes of artistic expression and promotion. Conversely, the images in the book were used as historical artifacts to document and represent the actual occurrence of the concert events. The Second Circuit also found the images were used for scholarship. Additionally, the Second Circuit noted that reproduction in the book in a reduced size strengthened the transformative nature of the work.
Here, the court found the Met’s use of Marano’s photo analogous to the analysis in Bill Graham. Marano created the photo to show what Van Halen looked like when performing and convey that he is a groundbreaking and unorthodox musician. Conversely, the Met focused on the Frankenstein guitar itself. The Met used the photo only to reference and contextualize the exhibition object as a historical artifact. The Met also uses the photo in a scholarly context to represent use of the guitar. The court also found that the photo constitutes an “inconsequential portion” of the Met’s online catalog. Accordingly, the court found that the Met’s use of the photo was transformative which favors a finding of fair use.
Nature of the Work
In moving to the second factor, the court examined the nature of the work. The court asked whether the work is expressive or creative and published or unpublished. The photo is obviously creative and published. Thus, this factor weighs minimally against fair use.
Amount of the Work Used
With regard to the substantiality of the portion of the work used, the Met displayed the entire photo. The court found that this use is reasonable in light of the purpose and character of the use to provide visual context for the exhibition object. The court found that the limited use focused on the historical nature of the photo. Thus, the third factor does not weigh against a finding of fair use.
Effect on Potential Market
In analyzing the use under the fourth factor, the court found that the traditional market for the photo would be collectors of photos of rock legends or those showcasing Van Halen. The Met’s use is a different transformative market. Accordingly, the court found that it was unlikely that markets for the original photo would be affected in any way. Thus, this factor favors a finding of fair use.
In balancing all the factors, the court found that the factors favor fair use by the Met. Accordingly, the court dismissed the Marano’s complaint. This goes to show the more transformative a work, the more likely a fair use exception can be applied in a copyright infringement case.