Use of copyrighted guitar picture in museum catalog deemed fair use. MARANO v. MET

A creator of a new work of expression is granted a copyright to that work when it is fixed in a tangible medium. This means that when a photographer takes a picture, the photographer is automatically granted a copyright to that photograph. The owner of a copyright is granted the exclusive right to reproduce, distribute, display, perform, transmit and make derivative works based on the original work. If someone other than the copyright owner attempts to exercise on of these exclusive rights, that can be considered copyright infringement. A copyright owner can combat copyright infringement by filing a complaint in a Federal District court.

The rights granted by copyright law do have some limits. The purpose of copyright law is to promote the progress of useful arts and science by protecting the exclusive right of authors and inventors to benefit from their works of authorship. Sometimes the interest that the public has in a copyrighted work out weighs the interests of a copyright owner. In these cases, a defendant in a copyright infringement lawsuit will be excused from liability.

A fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. Fair use is a defense to copyright infringement. A copyright defendant that demonstrates to a court that their use of the copyrighted work is a fair use would not be liable for infringement.

When a court is presented with a fair use defense the court will apply a test with several factors to the facts of the case to determine whether the defendant’s use constitutes a fair use. The four factors judges considers in a fair use defense are: (1) the purpose and character of your use (2) the nature of the copyrighted work (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market. This inquiry can often be fact specific, therefore it is useful to study prior court decisions to understand how a court will apply the fair use factors to future cases.

MARANO v. METROPOLITAN MUSEUM OF ART , 19-cv-8606 (S.D.NY 2020) illustrates a case where fair use was found when a photograph that depicted an object with historical significance was copied.

Plaintiff is a professional photographer who took a photograph of Eddie Van Halen playing his “Frankenstein” guitar at a concert. Defendant is a nonprofit museum that displays works of art to the public. Defendant had an exhibition on rock and roll instruments which featured the Frankenstein guitar. In promotional material for the exhibit Defendant included the Plaintiff’s photograph in an online catalogue for a exhibition. The catalogue included 185 pages representing the exhibit objects on physical display. The Photograph was displayed as a thumbnail image on the page discussing the “Frankenstein” guitar, along with a large photograph of the guitar, two thumbnail images, and two paragraphs of text describing the guitar’s history and technical specifications. Online visitors could click on the Photograph’s thumbnail to view a larger version of it. Plaintiff sued Defendant for willful copyright infringement. Defendant motioned to dismiss under the fair use doctrine.

The court reviewed the four fair use factors in turn. The court found that the purpose and character of the use favored fair use because Plaintiff took the Photograph to show what Van Halen looked like while performing and to convey Van Halen’s significance as a musician, meanwhile the Defendant used the photograph in a scholarly context as a historical artifact to contextualize the “Frankenstein” guitar.

The second factor, weighed minimally, against fair use because Defendant’s use was to highlight the Photograph’s historical, rather than creative, value. The third factor, the amount and substantiality of the work used, did not weigh against fair use because using the entire photograph to was reasonable for the purpose of showing the historical context of the guitar. The court found that the fourth factor, favored fair use because Defendant’s use falls into a “transformative market,” not affecting the Photograph’s original market for photograph collectors of rock and roll legends or of Van Halen.

Weighing all the fair use factors together the District Court found that Defendant’s use qualified as a fair use and granted the motion to dismiss.

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