This month, a federal district court in New York dismissed a Florida photographer's copyright infringement claim against the Metropolitan Museum of Art, in which the photographer alleged that the Met infringed his copyright when it displayed a copy of his photograph on its website. In so ruling, the court was guided by its finding that the Met's use presented the photograph as "an historical artifact" that was "transformatively different from" its "original expressive purpose."
Lawrence Marano is the owner of the copyright in his photograph of famous guitarist Eddie Van Halen performing live. In the photograph, Mr. Van Halen is playing his "Frankenstein" guitar, which he assembled himself from modified factory seconds and mismatched odd-lot parts. The Met, a nonprofit museum, included a complete copy of the photograph in its online catalogue for an exhibition that "examined the instruments of rock and roll." The catalogue provided historical and technical information concerning the guitar alongside the photograph.
The Met moved to dismiss for failure to state a claim, arguing its use of the photograph constituted fair use. The district court agreed, relying heavily on the "transformative" nature of the Met's use, which differed from the original purpose for which the photograph was created. While the photographer created the photograph to depict Mr. Van Halen performing live, the court found, the Met used the photograph for an historical purpose, namely, as "an historical artifact and a recognizable representation of the 'Frankenstein' guitar in action." The Met also placed the photograph in a scholarly context that explained the "Frankenstein" guitar's historical significance within "the world of hard rock music."
The court rejected the plaintiff's argument that the use was not transformative because it "merely used it as an illustrative aid to depict the subjects featured" and did not "critique the artistic merits of the photograph itself." The court ruled that the "nature of the inquiry" is not "whether the exhibition comments on the Photo per se" but instead "whether it uses the Photo to help illustrate the historical artistic significance of the guitar." And, having found that the use was transformative, the court placed little weight on the other fair use factors-including the fact that the Met had used the entirety of the photograph, which might otherwise have weighed against a finding of fair use.
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