Second Circuit Finds The Met Made Fair Use of Rock Star Photo in Online Catalogue

Recently, the Second Circuit Court of Appeals affirmed a district court ruling that the Metropolitan Museum of Art did not infringe a photographer’s copyright in an image of Eddie Van Halen because the museum’s use of the image in its online exhibition catalogue constituted fair use.  This decision is relevant to all galleries and museums that exhibit artworks digitally, which has only increased since the onset of the Covid-19 pandemic.  Here’s what you need to know.

Background

In 2019, Lawrence Marano, a photographer, filed a lawsuit in federal court in Manhattan against the Metropolitan Museum of Art.  Marano claimed that the Met’s display of a thumbnail version of his photograph of Eddie Van Halen playing his self-made “Frankenstein” guitar in an online catalogue for the “Play It Loud: Instruments of Rock & Roll” exhibition infringed his copyright in the photograph. 

The District Court Decision 

Judge Valerie Caproni ordered Marano to show cause why the case should not be dismissed on fair use grounds, and, after briefing, dismissed the case for failure to state a claim. The court relied largely on Bill Graham Archives v. Dorling Kindersley Ltd., in which the Second Circuit held that the reduced-sized reproduction of a Grateful Dead concert poster in a book to illustrate the history of the band was transformative and a fair use.  Judge Caproni found that Marano’s original purpose in creating the photograph was to capture what Van Halen looked like on stage, whereas the museum’s purpose was to spotlight the instrument. As in Bill Graham Archives, because that purpose differed from the photographer’s original purpose, it was transformative.

The Second Circuit Decision

Marano appealed this decision, and on April 2, 2021, the U.S. Court of Appeals for the Second Circuit affirmed Judge Caproni’s decision. Applying the “transformative” test, the Second Circuit agreed with Judge Caproni’s finding that the Met’s purpose – highlighting the Frankenstein guitar – differed from the photographer’s purpose, which was to capture the rock star’s likeness.  The court also noted that the photograph appeared alongside other photographs showing the physical composition of the guitar, and text discussing the guitar and its impact on rock n’ roll music, not Van Halen’s career.  Per the Second Circuit, the Met’s use of Marano’s photograph was transformative and therefore did not affect the photograph’s original market, or any other market for commercial use of the photograph.

Take-Away Points 

While the Second Circuit’s decision shows that the use of a thumbnail version of a photograph in the context of other imagery and text focused on the guitar, rather than the musician, constituted fair use, the Second Circuit noted that the determination of fair use is a case-specific inquiry, and a different use by a museum or another art exhibitor could have “tipped the scales in the other direction.”  As museums and galleries have expanded their online presence through the increased use of online marketing platforms due to closures and social-distancing orders caused by the Covid-19 pandemic, these cultural institutions need to continue to consider copyright clearance issues and adopt rights-management practices tailored to their risk tolerance.  Museums and galleries interested in learning more about copyright issues as they develop their rights-management practices should read Amelia Brankov’s recent article, Copyright Considerations as Art Galleries and Museums Move Online in the Wake of Covid-19, available here.