472 F.Supp.3d 76
S.D.N.Y.2020Background
- Plaintiff Lawrence Marano, a professional photographer, owns a copyright in a photo of Eddie Van Halen performing and sued the Metropolitan Museum of Art for posting the photo in the Met’s online "Play It Loud" exhibition catalogue.
- The Met is a nonprofit; the online catalogue mirrors the physical exhibition and is freely accessible. The contested photo appears as a thumbnail on the "Frankenstein" guitar object page among 185 objects and can be enlarged by users.
- The Complaint challenged only the Met’s online use. The Court ordered Marano to show cause why the suit should not be dismissed on fair use grounds and parties briefed the issue on the pleadings.
- The Court applied the four statutory fair use factors under 17 U.S.C. § 107, emphasizing the first factor (transformative use) and considered analogous Second Circuit precedent (Bill Graham).
- The Met used the photo to document and contextualize the historical significance of Van Halen’s "Frankenstein" guitar (scholarly/historical purpose), displayed it reduced in size amid textual/object details, and later credited Marano.
- The Court concluded the Met’s use was transformative, that other factors did not overcome that finding, and dismissed the complaint as fair use.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Met’s use is transformative and favors fair use | Marano: Met merely used the photo illustratively; no new expression or message—thus not transformative | Met: used the photo as a historical artifact to document the guitar in a scholarly/explanatory context, a different purpose from the photo’s original expressive purpose | Court: Use is transformative (historical/scholarly use) and this factor strongly favors fair use |
| Whether the use is commercial (weight of commercial factor) | Marano: Met charges museum admission, so the use is commercial and weighs against fair use | Met: contested use was in an online catalogue freely accessible; even if museum charges admission, transformativeness reduces significance of any commercial aspect | Court: Commercial factor carries little weight given the strong transformativeness finding |
| Whether copying the entire photo weighs against fair use (amount/substantiality) | Marano: Met reproduced the whole photo, which should weigh against fair use | Met: copying the entire image was reasonable and necessary to identify and document the guitar; image was reduced and presented with contextual text | Court: Full-image copying is reasonable here and does not weigh against fair use |
| Whether the use harms the market for the original (market effect) | Marano: Museums are a potential market for his work; Met’s use could usurp licensing opportunities | Met: Use is in a transformative market (historical/scholarly) and unlikely to substitute for the photo’s traditional markets; Marano offered only conclusory claims of market harm | Court: No meaningful market harm shown; this factor favors fair use |
Key Cases Cited
- Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) (using images as historical artifacts in a biographical context constituted fair use)
- Campbell v. Acuff‑Rose Music, Inc., 510 U.S. 569 (1994) (transformative use reduces weight of commerciality; fair use framework)
- Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) (transformativeness and public benefit; market-effect analysis)
- Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006) (transformative purpose supports fair use in visual art)
- Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003) (full or reduced reproductions can be reasonable when necessary for identification/use)
- Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) (transformativeness can lessen the weight of other fair-use factors)
- Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73 (2d Cir. 2014) (transformative-use questions can be resolved pre-discovery)
- Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) (courts may resolve fair use as a matter of law)
- Am. Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1994) (commercial/nonprofit dichotomy in fair use analysis)