Jackson Weist, Contributing Member 2024-2025
Intellectual Property and Computer Law Journal
I. Introduction
The Rock and Roll Hall of Fame in Cleveland, Ohio is currently being sued by a photographer for using a photo he took of Eddie Van Halen in an exhibit without his permission.[1] The Rock Hall argues that its use of the photograph is educational and provides context to its exhibit on Van Halen’s guitar, while the photographer argues his copyrights are being infringed.[2] Museums have existed for thousands of years as hubs of creativity and learning via displaying creative works. Conversely, copyright law – which would seem to halt such unapproved recreations of works – is so important to the foundation of the law that it is itself baked into the United States Constitution.[3] So, how are the two able to exist side-by-side? In certain situations, the fair use doctrine allows for the legal copying of works without the author’s permission.[4] It is infamous for its inconsistent standards and widely varied application, but it is the essential legal doctrine that allows for museum exhibits to exist without permission from copyright owners and is vital to the functionality of museums and their business models. [5]
This article explores the intersection between public museum exhibits and modern-day US copyright law. Part II provides background on the legal framework of copyright and the fair use doctrine. Part III details two cases regarding the issue of fair use and how their holdings intersect with the business model of museums. Part IV concludes with what museums or similar educational institutions should consider when navigating this space of copyright law.
II. Background
Copyright Law
In the United States, copyright law provides the creators of artistic works with limited legal protection over their creations.[6] Creators are given several exclusive rights and control over: reproduction of the work, derivative works, distribution of copies of the work, the work’s public performance and display, and in the case of sound recordings, the digital transmission of the work.[7] For example, an artist who makes a wholly original painting, or a photographer with a wholly original photograph has complete control over reproductions of that painting or photograph and where and when it is shown publicly.[8] Copyright as a field of law is founded on the policy view that we value the arts for what they provide to society and want to incentivize creativity without fear of copying.[9] Creatives benefit from extra protection for their works, while society benefits from an enriched creative culture and a rich public domain once copyright protection runs out.[10] However, copyright law does not completely bar the use of protected works as there is also value recognized in some forms of copying. Criticism, commentary, teaching or reporting on protected works are allowed forms of fair use for a new, transformative purpose.[11]
Fair Use
The fair use doctrine allows others to be able to use creative works without the copyright holder’s permission.[12] The four factors of the fair use doctrine are: 1) The purpose and character of the use; is the new work trying to pass off the original as if it were new?[13] Or is the new work transforming the purpose of the original? For example, taking something originally meant for entertainment and using it as an educational tool would weigh towards being a fair use.[14] 2) The nature of the copyrighted work; is the original work highly creative, such as a painting or novel, or is the original work less creative, such as a non-fictional or historical work?[15] 3) How much of the original work is copied in the new work; what percentage of the original work was taken?[16] Is what was taken, regardless of the amount, the substantial “core” of the original work?[17] 4) What effect does the copying have on the market, or potential markets, for the original work; does it substantially harm or even completely eclipse the market for the original?[18] While all four factors are considered by a court, the doctrine is generally analyzed on a case-by-case basis where one or two factors are the main issues that the court considers.[19] This allows for the court to provide greater weight to different parts of the analysis depending on the unique facts and context of the case.[20] For example, the two museum cases discussed in Part III pivot primarily on the first factor.
The doctrine is infamous for how subjective its application can be. To many, an application of the doctrine can feel as though judges make up their mind before ever putting the case to the test and then warp their analysis of the factors to fit into their preconceived ruling.[21] For example, in Original Appalachian Artworks, Inc. v. Topps Chewing Gum, Inc a trading cards company sold “Garbage Pail Kids“ which depicted grotesque and irreverent parodies of the famous Cabbage Patch Kids.[22] While many believed this to be an open shut case of fair use as a parody – which would be highly transformative under the first fair use factor – the court was so offended by the artwork on the cards that they ruled it an infringement anyways.[23] For this reason, subjective application of the fair use doctrine could lead to unfavorable rulings both for institutions looking to fairly use works as well as the artists whose works are being used without their permission.
III. Discussion
The Met Case
In 2020, a photographer sued The Metropolitan Museum of Art – more commonly known as “The Met” – for copyright infringement over an exhibit which used one of his photographs without his permission.[24] The Met used a photo that the plaintiff took of Eddie Van Halen playing at a concert as a part of their exhibit showcasing various famous instruments from the history of rock and roll, including Van Halen’s famous “Frankenstein” guitar.[25] Part of the exhibit – including the plaintiff’s photograph – was available online, where users were able to go to The Met’s website and click through various images of famous rock instruments accompanied by curator-written commentary as to their significance.[26] The Met argued, successfully, that their use of the photo was transformative under the first fair use factor.[27] The court went through the full fair use analysis and agreed with The Met that the first factor weighs heaviest in this case and breaks their analysis of the first factor into three pieces.[28]
First, they believed the use to be transformative as the exhibit was not using the photo as a showcase or promotion of the artist himself, like the original photograph was taken to do, but was using it for its historical value as a representation of the instrument.[29] Second, the court placed special importance on the scholarly context of a museum exhibit, stating that the use of the photo in a biographical and historical context makes the use entirely distinct from the original’s expressive context.[30] Third, the court looked at the context of the use of the photo within the exhibit as a whole, as the photo itself was only used in the digital version of the exhibit and could only be found deep into various sub-sections.[31] Based on all of this, the court reasoned that The Met’s use of the photograph was a fair use.
Rock and Roll Hall of Fame Case
Marano is not the only case to focus on fair use and museums. More recently, in October 2024, Neil Zlozower, a prominent rock music photographer, sued the Rock and Roll Hall of Fame for using an image he took of Eddie Van Halen in one of their exhibits without his permission.[32] The case is, at the time of writing, still being litigated but the Rock and Roll Hall of Fame is relying on the court’s logic in Marano to show their use of the photograph was educational and thus transformative enough to be a fair use.[33] Zlozower contends that the transformativeness of the Rock Hall’s exhibit is outweighed by the fact they were profiting from the exhibit via charging admission to see it.
Commercial Use
The first factor of the fair use analysis places special emphasis on whether or not the allegedly infringing use of the work was done for a commercial purpose.[34] While not a complete killer to a fair use defense, it generally weighs against fair use if the new work was for a commercial purpose.[35] The bulk majority of museums in the United States are nonprofit organizations and are primarily deemed as education institutions.[36] So, the issue of a “commercial use” under the fair use analysis would theoretically not matter as the museum exhibits are inherently educational and non-commercial. However, in the Marano and Zlozower cases the exhibits in contention both had some element of a fee. The Met charges a fee to out-of-state visitors and the Rock and Roll Hall of Fame charges an admissions fee to all visitors. This raises two considerations. Do admission fees change anything about a fair use analysis for a museum? If it does not, should it?
As seen in Marano, both the trial and appeal courts agreed that the transformativeness of the work outweighed any financial gain that was acquired by The Met.[37] The fact that the use of the photograph was educational and used in a scholarly context made it so transformative to the court that it outweighed the fact there was an accompanying fee.[38] Did the court get this right? To answer this question, it is crucial to understand how museums in the United States operate financially.
Museum Financial Models
The Met’s listed assets are worth nearly $4 billion, for an entity which is ”nonprofit” that may lead one to believe it should not be so difficult for them to ask permission.[39] However, the financial models of most museums quickly show that this number is deceptively large.[40] The actual cash holdings of The Met are only $7 million.[41] Accounting for around 60% of their total revenue, museums are mainly supported by fundraising efforts, not admissions prices.[42] Further, these fundraising efforts are supported by a slim group of donors. In 2017, 88% of The Met‘s gifts came from only 12% of their donors.[43] With such slim margins, museums need all that they can get when it comes to furthering their educational missions – including the charging of admissions fees.[44] Contrast this with the model much of the rest of the world takes, where museums are funded by the government- such as the whopping $100 million the French government gives the Louvre each year.[45] If the Marano court had ruled to the contrary and stated that an associated admissions fee kills a museum‘s fair use defense, it could have had drastic consequences on museums as an industry in the US. However, the court put heavy weight on the scholarly context of The Met’s use and refused to say that an admissions fee kills a museum’s fair use defense.[46]
If a museum charging admissions fees would kill any fair use claim, it could create great budgetary issues for them, or the potential legal troubles incurred may prevent museums from taking the risk of putting up such displays at all. The Constitution includes a copyright clause “to promote the progress…of science and useful arts.”[47] This means that the Constitution itself seeks to encourage and incentivize the sharing of knowledge.[48] If museums did not have fair use to rely on in their exhibits, they would likely not be able to sustain themselves and this constitutional mission of knowledge dissemination would be severely impeded.
IV. Conclusion
Despite the modern copyright fair use landscape being difficult to navigate, museums have carved a niche as important education institutions to make their displays of copyrighted works likely blanket fair uses. While fair use should be a doctrine that a museum can comfortably rely on, its varied and subjective applications can make it feel like shaky ground to rest upon. Given the holding in Marano, it would seem so long as museums keep their use of a work in a historical, educational context their uses of works will be deemed fair. Based on Marano, if the Rock and Roll Hall of Fame’s use is sufficiently transformative then the fair use doctrine will become even stronger for museums to rely on. Precautionary actions museums can take include providing added commentary to their exhibits, including plaques which appropriately credit photographers, and other such added efforts to display transformativeness which would help to keep the ire of un-credited artists at bay. However, with how subjective the application of the fair use doctrine can be it may be in the best interest of museums to still seek permission from artists whenever possible.
[1].Zlozower v. Rock and Roll Hall of Fame and Museum, Inc., 5:24-cv-1817 (N.D. Ohio 2024).
[2] Id.
[3] U.S. Const. art. I, § 8, cl. 8.
[4] 17 U.S.C. §107.
[5] Rich Stim, Measuring Fair Use: The Four Factors, Stanford Libraries, https://fairuse.stanford.edu/overview/fair-use/four-factors/ [https://perma.cc/32XP-A6DY].
[6] 17 U.S.C. § 101.
[7] 17 U.S.C. § 106.
[8] Id.
[9] Intellectual Property Clause, Legal Information Institute (June 2023), https://www.law.cornell.edu/wex/intellectual_property_clause [https://perma.cc/YQA9-DTLS].
[10] Id.
[11] 17 U.S.C. §107.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Keck v. Mix Creative Learning Ctr., L.L.C., 116 F.4th 448, 453 (5th Cir. 2024).
[20] Id.
[21] Stim, supra note 5.
[22] Id.
[23] Id.
[24] Marano v. Metro. Museum of Art, 472 F. Supp. 3d 76, 80 (S.D.N.Y. 2020).
[25] Id.
[26] Id at 80.
[27] Id.
[28] Id. at 83.
[29] Id. at 84.
[30] Marano, 472 F. Supp. at 84-85.
[31] Id. at 85.
[32] Zlozower v. Rock and Roll Hall of Fame and Museum, Inc., 5:24-cv-1817 (N.D. Ohio 2024).
[33] Id.
[34] Marano, 472 F. Supp. 3d at 85-86.
[35] Id.
[36] Starting a Museum, American Alliance of Museums, http://ww2.aam-us.org/docs/default-source/about-museums/starting-a-museum–final.pdf?sfvrsn=6 [https://perma.cc/R2XE-RLP2].
[37] Marano, 472 F. Supp. 3d at 85-86.
[38] Id.
[39] The Business Model of the Nonprofit Museum, Sotheby’s Institute of Art (Jan. 9, 2018), https://www.sothebysinstitute.com/news-and-events/news/the-business-model-of-the-nonprofit-museum [https://perma.cc/5XFU-WN8B].
[40] Id.
[41] Id.
[42] Id.
[43] Id.
[44] Id.
[45] Cecelia Rodriguez, Overcrowded Louvre Museum In Paris To Get Major Renovations And A Room For Mona Lisa, Forbes (Feb. 3, 2025), https://www.forbes.com/sites/ceciliarodriguez/2025/01/30/overcrowded-louvre-museum-in-paris-to-get-major-renovations-and-a-room-for-mona-lisa/ [https://perma.cc/U4KA-GCXS].
[46] Marano,472 F. Supp. 3d at 85-86.
[47] U.S. Const. art. I, § 8, cl. 8.
[48] Id.
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