Because it focused not on the guitarist but his instrument, the Metropolitan Museum of Art was found to have transformed a concert image of the rocker.
MANHATTAN (CN) — The Second Circuit backed the Metropolitan Museum of Art on Friday for its use of a photograph of guitar superhero Eddie Van Halen in an online exhibit catalog.
The three-judge panel ruled that the Met’s use of the photograph was “transformative” because it focused on Van Halen’s iconic red-and-white striped guitar and not the band’s eponymous guitar superhero himself.
Aptly nicknamed “Frankenstein” and “Frankenstrat,” Van Halen’s signature guitar was custom-built from a mismatched hodgepodge of Fender and Gibson components.
Florida-based photographer Lawrence Marano had sued the iconic New York museum for copyright infringement in September 2019 after his 1982 photograph of Van Halen appeared as part of a publicly available online catalog on the Met’s website without his authorization.
Marano’s 1982 photograph from a live show shows a shirtless Van Halen demonstrating his characteristic “finger-tapping” guitar solo technique on the iconic guitar’s lower fret board. The actual “Frankenstein” guitar seen in Marano’s photograph was one of more than 130 instruments featured in the “Play It Loud: Instruments of Rock & Roll” exhibit, which ran at New York’s Metropolitan Museum of Art from April 8 to October 1, 2019.
Represented by Long Island-based copyright attorney Richard Liebowitz, Marano appealed to the Second Circuit after U.S. District Judge Valerie Caproni dismissed the suit in July 2020 for failure to state a claim.
Caproni found that the photographer had “failed to show why the Met’s use of [the photo] is not protected by the fair use exception,” and the federal appeals court affirmed Friday.
“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 Second Circuit wrote in an unsigned summary order.
“Further, the Photo appears alongside other photographs showing the physical composition of the guitar, which are collectively accompanied by text discussing the guitar’s genesis, specifications, and impact on rock n’ roll music, not Van Halen’s biography or discography,” the 5-page decision states.
Caproni’s fair use ruling relied principally on the Second Circuit’s 2006 ruling in Bill Graham Archives v. Dorling Kindersley Ltd., which upheld the reprinting of 1960s San Francisco rock concert posters in a 480-page coffee table book about the Grateful Dead.
“The Second Circuit’s decision in Bill Graham all but decides this case,” Caproni wrote. “Just as the defendant in Bill Graham used the concert poster ‘as a recognizable representation of the [Grateful Dead] concert,’, the Met used Plaintiff’s Photo as an historical artifact and a ‘recognizable representation’ of the ‘Frankenstein’ guitar in action,” the Obama-appointed judge wrote last year.
In affirming Caproni’s dismissal on Friday, the Second Circuit also relied on the Bill Graham precedent.
“There is no indication in the record that the Met’s use of the Photo on a web page describing the Frankenstein guitar could, in any way, impair any other market for commercial use of the Photo, or diminish its value,” the summary order states.
The three-judge panel was composed of Senior U.S. Circuit Judge John Walker Jr., a George H. W. Bush appointee; Trump-appointed U.S. Circuit Judge William Nardini; and U.S. District Judge John Sinatra Jr., a Trump-appointee to the Western District of New York, sitting by designation.
The “Play It Loud” exhibit included such other iconic rock axes as Eric Clapton’s “Blackie,” Jerry Garcia’s “Wolf” and Jimi Hendrix’s psychedelic-painted Flying V.
The exhibition ran at the Met through October 1, 2019, before moving to The Rock & Roll Hall of Fame in Cleveland, Ohio.
Marano’s counsel did not immediately respond to request for comment Friday afternoon.
Eddie Van Halen, who grew up and founded Van Halen in Pasadena, California, died last October at age 65 after a battle with cancer.