In Neil Zlozower v. The Rock and Roll Hall of Fame and Museum, Inc., the storied Hall of Fame brought a motion for judgment on the pleadings in the Northern District of Ohio (that is, their home turf) after the plaintiff brought a claim for copyright infringement. The Hall of Fame countered with a motion for judgment on the pleadings, which invites a court to reach a decision based only on the complaint and the answer.
The plaintiff’s career spanned decades and included photographing numerous bands performing. This complaint arose from the Hall of Fame’s use of two of Zlozower’s photographs featuring Eddie Van Halen and his iconic double-necked guitar, “Frankenstein” (also referred to as “FrankenStrat” or simply “Frankie”). Without compensation or credit, the Hall of Fame used those images at the entry way to an exhibit that showcased a diverse collection of the musical instruments that gave rock and roll its signature sound.
The Museum cropped and enlarged to eight feet tall a photo of Van Halen and “Frankenstein,” and used another as a smaller placard placed next to the first. Since the defendant claimed fair use as an affirmative defense, the court used the four-factor fair use test to determine whether the Hall of Fame’s use was allowable.
The plaintiff said the initial purpose of the images was to portray the band members as a “fun-loving, good-looking party band” in order to promote the band’s then-upcoming second album. (That declared, targeted use was plaintiff’s downfall.) In contrast, the defendant claimed its exhibit was educational in nature — using the photographs as historical artifacts to contextualize musical instruments and sound equipment. The court sided with the defendant on this factor, finding that the defendant’s use was transformative.
The second factor, the nature of the copyrighted work, takes into consideration whether the allegedly infringemed work was factual or “expressive or creative”. The fact that the plaintiff composed the images by choosing what equipment to use, along with artistic choices like perspective and angle, led the court to find this factor weighed in favor of plaintiff.
The third factor considers the amount of the work that was used. Though the image was cropped, the court pointed out that fair use sometimes allows for the entirety of a work to be used. The court found this factor did not weigh against the defendant.
The last factor considers the impact of the use on the market for the original. Plaintiff claimed that he licensed photographs for other museums and that defendant’s use affected his ability to market photographs to other museums. Plaintiff additionally cited the defendant’s entry fees as a commercial use. Calling this claim conclusory, the court nonetheless cited Marano v. Metropolitan Museum of Art, in which it was determined that the museum’s admission fees did not make its use commercial. This factor, the court said, weighed in favor of defendant.
After its analysis, the court found that the balance of factors weighed in the defense’s favor and subsequently dismissed the case.
It struck me as odd that the court ignored the likely commercial impact of the giant photograph used to promote and entice the public to pay for admission to the exhibit. However, as noted above, the photographer’s declaration that he took the photo to support the band’s album promotion made it easier for the Museum to declare, under the transformative test established by SCOTUS in the Warhol case, that the Museum’s purpose and use was substantially different and transformational. I wonder if the plaintiff could have cast the net more broadly to prevent such re-use of his photograph without compensation.
