On April 2, 2021, the United States Court of Appeals for the Second Circuit ruled in favor of the Metropolitan Museum of Art when it held in a summary order that the Met’s use of a 1982 photograph of famed guitarist Eddie Van Halen (the “Photograph”) in an online catalogue in connection with the Museum’s exhibition of rock-and-roll musical instruments is sufficiently transformative to constitute “fair use” under Federal copyright law.[1]
The Met included the Photograph in an online counterpart to an in-person exhibition it presented in 2019 in collaboration with the Rock & Roll Hall of Fame, titled “Play it Loud: Instruments of Rock & Roll,” which featured approximately 130 musical instruments.[2] The online catalogue associated with the exhibition included historical text and images of the instruments. As part of its explanation of the “Frankenstein” guitar, the Met included one large photograph accompanied by three thumbnail photographs of the guitar, one of which was an allegedly infringing photograph of Van Halen playing the guitar (the other two depicted the guitar on display in the Museum). Photographer Lawrence Marano, the owner of the copyright in the image, sued the Museum for infringement. Judge Valerie E. Caproni in the Southern District of New York granted the Museum’s motion to dismiss, citing Marano’s failure to show why the museum’s use was not a permitted fair use.
The Second Circuit affirmed Judge Caproni’s decision, holding that the Met’s use of the Photograph was sufficiently transformative to constitute fair use. “Whereas Marano’s stated purpose in creating the photo was to show ‘what Van Halen looks like in performance,’ the Met exhibition highlights the unique design of the Frankenstein guitar and its significance in the development of rock n’ roll instruments,” the Court wrote.[3] In other words, the Met’s online use of the photograph “transformed the Photo by foregrounding the instrument rather than the performer.”[4]
Although Marano argued that the Met’s admission fee weighs against a finding of fair use under the fourth statutory fair use factor (effect on the market or value of the original work), the Second Circuit noted that the Museum’s website (which houses the online catalogue) is free and publicly available.[5] Accordingly, rather than fulfilling a commercial objective, the Met’s website promotes the advancement of science and art in an accessible manner, consistent with the goals of the fair use doctrine. The Court also concluded that the Met’s use of the Photograph could not “in any way impair any other market for commercial use of the photo, or diminish its value.”[6]
The Second Circuit’s decision in Marano came on the heels of another notable fair use decision involving a professional photograph of a legendary guitarist. On March 26, 2021, less than a week prior to the Marano decision, a different Second Circuit panel ruled in favor of professional photographer Linda Goldsmith when it held that print illustrations of Prince that Andy Warhol created based on Goldsmith’s copyrighted photograph of Prince were not sufficiently “transformative” to constitute fair use.[7] The Warhol v. Goldsmith decision was widely viewed as reining in fair use for appropriation artists, but the Marano decision issued just days later appeared to provide new breathing room for curators, authors and museums in the visual arts. And less than a week after that, on April 5, 2021, the U.S. Supreme Court ruled in Google v. Oracle that Google’s copying of roughly 11,500 lines of Java code was fair use, further bolstering the fair use doctrine in software design.[8]
The different outcomes in the Marano and Goldsmith decisions—two Second Circuit cases involving secondary uses of photographs of famous musicians—highlight the importance of a context-specific factual inquiry when evaluating fair use. According to the Court of Appeals, both Goldsmith’s photograph and Warhol’s print are fundamentally portraits of Prince. In contrast, Marano made clear that he intended his photograph to showcase how Van Halen performed, whereas the Met used the Photograph alongside historical text and other images to provide information about the guitar Van Halen used. Thus, although the Second Circuit held in favor of the photographer in the Warhol case, and against the photographer in the Marano case, the two cases can be reconciled. Taken together, these cases shed light on when secondary use of portrait photography is “fair.”[9]
[1] Marano v. Metro. Museum of Art, No. 20-3104-cv, 2021 WL 1235707 (2d Cir. 2021).
[2] Play it Loud: Instruments of Rock & Roll – Exhibition Overview, The Metropolitan Museum of Art https://www.metmuseum.org/exhibitions/listings/2019/play-it-loud (last visited Apr. 23, 2021).
[3] Marano, 2021 WL 1235707, at * 3.
[4] Id.
[5] Id., at 4.
[6] Id.
[7] Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 992 F.3d 99 (2d Cir. 2021).
[8] Google LLC v. Oracle America, Inc., 141 S.Ct. 1183 (2021).
[9] Ultimately the “transformativeness” analysis in such cases comes down to a question Van Halen once asked: “When was the last time you did something for the first time?” Van Halen, The Trouble With Never, on A Different Kind of Truth (Interscope Records 2012).