The museum neither licensed the photo nor provided credit or a source when exhibiting the photo.
The museum maintained that it had “transformed” Zlozower’s photograph from a promotional band image into a “historical artifact to underscore the importance of Eddie Van Halen’s musical instruments.”
The federal judge ruled that although the Rock and Roll Hall of Fame made a “nearly exact” copy of a portion of Zlozower’s photograph, it qualified as “fair use” under copyright law.
While the judge agreed with Zlozower’s argument, he found that the image had been used for a purpose that was different from the original.
“Looking at plaintiff’s photographs and defendant’s exhibit side-by-side and in light of copyright law, the court finds that defendant’s use adds new meaning and is transformative,” Boyko writes, according to Billboard’s report. “This is true although the copying is nearly exact.”
“The court concludes that defendant’s use of plaintiff’s copyrighted photographs is fair use.”
Judge Boyko’s ruling supported the Rock and Roll Hall of Fame’s argument that it had “transformed” Zlozower’s work from a promotional band photo into a “historical artifact to underscore the importance of Eddie Van Halen’s musical instruments.” The museum says its use of the image was part of a broader effort to “educate the public about the history of rock and roll music.”
So... we can use copywritten images for education, nice!
"transformative use of the Photographs, in furtherance of its non-profit mission to engage, teach, and inspire through the power of rock & roll, was of a limited nature that was reasonably necessary to contextualize the historical musical instruments on display in the Museum Exhibits, had no effect on the potential market for or value of the copyrighted work, and consequently qualifies as permissible fair use for which there can be no liability under 17 U.S.C. § 107."
This really pulls the rug out from under the photographers though... I don't see how they can recover legally from a judge saying that their photos can be used by a museum without permission
By the way, this photographer has been photographing the most famous musicians for decades, and has about 800 magazine covers, he's sued at least 60 businesses for using his photos, and if the precedent is now that they can as long as it's educational? This and all the other paparazzi are going to have no recourse if someone else uses their photos without permission
The use was considered noncommercial since the museum's website was freely accessible to the public, despite the physical museum charging an admission fee.
The court emphasized that the fair use analysis is highly fact-specific and context-dependent, and the ruling did not grant museums unfettered rights to use copyrighted material without permission.
But I can not find the image in question online.
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