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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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` LAWRENCE MARANO,
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`Defendant. :
`-------------------------------------------------------------- X
`VALERIE CAPRONI, United States District Judge:
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`Plaintiff,
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`-against-
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`7/13/2020
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`19-CV-8606 (VEC)
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`OPINION AND ORDER
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` THE METROPOLITAN MUSEUM OF ART,
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`Plaintiff Lawrence Marano (“Marano” or “Plaintiff”) sued the Metropolitan Museum of
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`Art (“Met” or “Defendant”) for willful copyright infringement under Sections 106 and 501 of the
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`Copyright Act, 17 U.S.C. §§ 106, 501. Compl. (Dkt. 1) ¶¶ 13–15. The Court ordered Plaintiff to
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`show cause why this case should not be dismissed under the fair use exception of the Copyright
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`Act, 17 U.S.C. § 107. (Dkt. 5). As detailed below, because Plaintiff has failed to show why the
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`Met’s use of his photograph (the “Photo”) is not protected by the fair use exception, the case is
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`DISMISSED.
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`BACKGROUND1
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`Plaintiff is a Florida-based professional photographer who owns the copyright to the
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`Photo, a photograph of Eddie Van Halen (“Van Halen”) performing at a concert. Compl. ¶¶ 5,
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`The facts are based on the allegations contained in the Complaint, materials attached to the Complaint, and
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`the Met’s “Play It Loud” online exhibition (see https://www.metmuseum.org/exhibitions/listings/2019/play-it-
`loud). The Court accepts all well-pled, non-conclusory factual allegations in the pleadings as true and draws all
`reasonable inferences in the light most favorable to Plaintiff. Gibbons v. Malone, 703 F.3d 595, 599 (2d Cir. 2013).
`The Court considers the Met’s online exhibition in toto because the Complaint references it repeatedly and provides
`screenshots from it, it is critical to Plaintiff’s allegations, and neither party contests the website’s accuracy. See
`Compl. ¶¶ 6, 10–11, 13; Compl., Ex. B (Dkt. 1-2); Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.
`2002) (“[A complaint] is deemed to include any written instrument attached to it as an exhibit or any statements or
`documents incorporated in it by reference. . . . Even where a document is not incorporated by reference, the court
`may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the
`document integral to the complaint.” (quotations omitted)); Stephens v. Trump Org. LLC, 205 F. Supp. 3d 305, 310
`n.7 (E.D.N.Y. 2016) (taking judicial notice of “the website hosted at ‘trumpestates.com’” where screenshots of the
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`1
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`USDC SDNY
`DOCUMENT
`ELECTRONICALLY FILED
`DOC #:
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`DATE FILED:
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`Case 1:19-cv-08606-VEC Document 17 Filed 07/13/20 Page 2 of 15
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`7–8; Compl., Ex. A (Dkt. 1-1). The Met is a nonprofit museum that “collects, studies, conserves,
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`and presents significant works of art across all times and cultures in order to connect people to
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`creativity, knowledge, and ideas.” Steinman Decl., Ex. A (Dkt. 15-1); see Corporate Disclosure
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`Statement (Dkt. 11).2 Plaintiff alleges that the Met infringed his copyright by posting the Photo
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`to the museum’s website.3 Compl. ¶¶ 10, 13; Compl., Ex. B (Dkt. 1-2).
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`The Met included the Photo in its online catalogue for the “Play It Loud: Instruments of
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`Rock & Roll” exhibition,4 which “examine[d] the instruments of rock and roll” from “[o]ne of
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`the most important artistic movements of the twentieth century.” Steinman Decl., Ex. B (Dkt.
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`15-2). The online catalogue corresponds to the physical exhibition previously displayed in a
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`gallery at the museum and is freely accessible. Id. To browse the online catalogue, visitors start
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`on a landing page and from there can proceed to three main sub-pages—“Exhibition Overview,”
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`“Exhibition Galleries,” and “Exhibition Objects”—that provide interpretive text, photographs,
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`and multimedia presentations about the instruments that were in the exhibition. Id.
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`To reach Plaintiff’s copyrighted Photo, a visitor must first navigate to “Exhibition
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`Objects,” which lists as thumbnails the 185 objects that were on physical display in the museum
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`website’s contents were submitted to the court “without any party raising any dispute as to the website’s
`authenticity”). The Court refers to excerpts of the online exhibition attached to the declaration of Linda Steinman
`dated October 23, 2019 (“Steinman Decl.”) (Dkt. 15).
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`The Court takes judicial notice of Defendant’s Corporate Disclosure Statement, which certifies that
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`“Defendant THE METROPOLITAN MUSEUM OF ART is a 501(c)(3) organization with no corporate parents or
`publicly held shares.” See Garcia v. Salvation Army, 918 F.3d 997, 1002 n.9 (9th Cir. 2019) (taking judicial notice
`of the Salvation Army’s nonprofit status).
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`In his response to the Court’s Order to Show Cause, Plaintiff asserts that the Met used the Photo in the
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`brick and mortar museum as well as in the online catalogue for the exhibition. Pl. Resp. (Dkt. 9) at 1. That might
`be true, but the Complaint includes no allegations regarding use of the Photo at the Met; it complains only of use of
`the Photo as part of the online catalogue. That said, this decision would be the same even if the Complaint alleged
`misuse of the Photo in the physical exhibition also.
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`The online catalogue can be found at https://www.metmuseum.org/exhibitions/listings/2019/play-it-loud.
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`The Photo itself is posted to https://www.metmuseum.org/art/collection/search/752454. Compl. ¶ 10; Compl., Ex.
`B. As of the date of this Opinion, both webpages are up and available.
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`2
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`Case 1:19-cv-08606-VEC Document 17 Filed 07/13/20 Page 3 of 15
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`as part of the “Play It Loud” exhibition. Steinman Decl., Ex. D (Dkt. 15-4). Visitors must then
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`click on the “Frankenstein” guitar thumbnail—the guitar designed and assembled by Van Halen.
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`The following page displays two paragraphs on the left side with historical and technical
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`information about the guitar.5 Compl., Ex. B; Steinman Decl., Ex. E (Dkt. 15-5). To the right of
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`that text there is a large photograph of the guitar and three smaller thumbnail photographs
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`beneath it. The third thumbnail photograph is the copyrighted Photo;6 the other two are
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`photographs of the “Frankenstein” guitar on display in the gallery. Visitors can view a larger
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`version of any of the three photographs by clicking on it. Beneath the historical text and the
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`photos, the page includes another section of text devoted to “Object Details”; that section
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`provides basic information about the guitar, including, inter alia, the materials it was made of
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`and its dimensions.
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`On September 16, 2019, Plaintiff filed his Complaint, and on September 18, 2019, the
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`Court ordered him to show cause why this action should not be dismissed under the fair use
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`exception of the Copyright Act, 17 U.S.C. § 107. Both parties have submitted responsive briefs
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`to the Court’s order. Pl. Resp. (Dkt. 9); Def. Reply (Dkt. 14); Pl. Sur-Reply (Dkt. 16).
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`DISCUSSION
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`Section 106 of the Copyright Act grants copyright holders certain exclusive rights over
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`their original works, including the right “to reproduce the copyrighted work in copies or
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`phonorecords” and the right “to display the copyrighted work publicly.” 17 U.S.C. § 106.
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`For example, the background text explains that the “Frankenstein” guitar “was pieced together by Eddie
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`Van Halen from modified factory seconds and mismatched odd-lot parts, then spray-painted. It represents an effort
`to combine some of the most desirable elements of Gibson and Fender guitars into a single instrument that was not
`commercially available at the time. Van Halen was continually striving to achieve the ultimate guitar for tone,
`playability, dependability, and functionality. . . . One of the most recognizable guitars of all time, it spawned
`legions of copies from other manufacturers and inspired generations of fans to design their own instruments.”
`Compl., Ex. B; Steinman Decl., Ex. E.
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`The Photo is now credited to Plaintiff. Compare Compl., Ex. B, with Steinman Decl., Ex. E.
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`Case 1:19-cv-08606-VEC Document 17 Filed 07/13/20 Page 4 of 15
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`Assuming for the sake of argument that Plaintiff possesses the copyright and that the Met’s
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`copying of the Photo was unauthorized, the sole issue before the Court is whether the fair use
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`doctrine warrants dismissal of the Complaint.
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`I.
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`Standard of Review
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`Because this action is still in the pleadings stage, and because the parties’ submissions are
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`limited to the four corners of the Complaint and incorporated materials, the Court will apply the
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`standards applicable to a Rule 12(b)(6) motion to dismiss. To survive a motion to dismiss, “a
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`complaint must allege sufficient facts, taken as true, to state a plausible claim for relief.”
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`Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 555–56 (2007)). “[A] complaint does not need to contain detailed or
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`elaborate factual allegations, but only allegations sufficient to raise an entitlement to relief above
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`the speculative level.” Keiler v. Harlequin Enters. Ltd., 751 F.3d 64, 70 (2d Cir. 2014). The
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`Court accepts all factual allegations in the complaint as true and draws all reasonable inferences
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`in the light most favorable to the plaintiff. Gibbons v. Malone, 703 F.3d 595, 599 (2d Cir. 2013).
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`The Court is not, however, “bound to accept as true a legal conclusion couched as a factual
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`allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
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`The Court may also consider “facts stated on the face of the complaint, . . . documents appended
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`to the complaint or incorporated in the complaint by reference, and . . . matters of which judicial
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`notice may be taken.” Graham v. Prince, 265 F. Supp. 3d 366, 376 (S.D.N.Y. 2017) (quotation
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`omitted); see also supra note 1.
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`II.
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`Fair Use Analysis
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`The fair use doctrine is a statutory exception to copyright infringement. Bill Graham
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`Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 608 (2d Cir. 2006). As codified in the
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`Case 1:19-cv-08606-VEC Document 17 Filed 07/13/20 Page 5 of 15
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`Copyright Act, “the fair use of a copyrighted work . . . for purposes such as criticism, comment,
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`news reporting, teaching . . ., scholarship, or research, is not an infringement of copyright.” 17
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`U.S.C. § 107. To determine whether a particular use is fair use, courts engage in a case-by-case
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`evaluation using four statutory factors in light of the purposes of copyright. Bill Graham, 448
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`F.3d at 608. The factors to be considered include—
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`(1) the purpose and character of the use, including whether such use is of a
`commercial nature or is for nonprofit educational purposes;
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`(2) the nature of the copyrighted work;
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`(3) the amount and substantiality of the portion used in relation to the copyrighted
`work as a whole; and
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`(4) the effect of the use upon the potential market for or value of the copyrighted
`work.
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`17 U.S.C. § 107. Although a court must weigh all the factors, the first—in particular a use’s
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`“transformativeness”—is most important and “has a significant impact on the remainder of the
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`fair use inquiry.” Prince, 265 F. Supp. 3d at 380.
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`Fair use is a “mixed question of fact and law,” necessitating “an open-ended and context-
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`sensitive inquiry.” Id. at 376 (quotation omitted). For that reason, courts generally wait until the
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`summary judgement phase to address fair use, id. at 377, but dismissal of a copyright
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`infringement claim is warranted where fair use is clearly established on the face of the complaint,
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`TCA Television Corp. v. McCollum, 839 F.3d 168, 178 (2d Cir. 2016). In this case, Plaintiff
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`does not object to addressing fair use at this stage of the proceedings.7 Even if he did, cases in
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`which transformativeness can be determined by doing a side-by-side comparison of the original
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`Plaintiff acknowledges that “[a] court ‘may conclude as a matter of law that the challenged use does not
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`qualify as a fair use of the copyrighted work.’” Pl. Resp. at 2 (quoting Harper & Row Publishers, Inc. v. Nation
`Enters., 471 U.S. 539, 560 (1985)).
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`Case 1:19-cv-08606-VEC Document 17 Filed 07/13/20 Page 6 of 15
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`work and the secondary use are particularly appropriate for disposition on a Rule 12(b)(6)
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`motion.8 Prince, 265 F. Supp. 3d at 377 (describing transformativeness as whether “the
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`allegedly offending use of the original work” alters the first work “with new expression,
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`meaning, or message”).
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`A.
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`Purpose and Character of the Use
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`The heart of the fair use inquiry is the purpose and character of the use. Blanch v. Koons,
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`467 F.3d 244, 251 (2d Cir. 2006). It includes two considerations: the transformative nature of
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`the work, see Bill Graham, 448 F.3d at 608; and whether the “use is of a commercial nature or is
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`for nonprofit educational purposes,” 17 U.S.C. § 107(1). “The more transformative the new
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`work, the less will be the significance of other factors, like commercialism, that may weigh
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`against a finding of fair use.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 569 (1994).
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`1.
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`Transformative Use
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`The fair use doctrine “allows for transformative works that further the public discourse
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`and the free exchange of ideas in order to promote science and the arts.” Baraban v. Time
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`Warner, Inc., No. 99-CV-1569, 2000 WL 358375, at *2 (S.D.N.Y. Apr. 6, 2000). To determine
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`whether the secondary use is transformative, the “question is whether the new work merely
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`supersedes the objects of the original creation, or instead adds something new, with a further
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`purpose or different character, altering the first with new expression, meaning, or message.” Bill
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`Graham, 448 F.3d at 608 (quotation omitted); see Authors Guild v. Google, Inc., 804 F.3d 202,
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`See, e.g., Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012) (“[T]he only two
`pieces of evidence needed to decide the question of fair use [at this early stage of the proceedings] are the original
`version of WWITB and the episode at issue.”); Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 86
`(2d Cir. 2014) (affirming the district court’s pre-discovery fair use ruling, noting that the “discovery [plaintiff] seeks
`would not alter our analysis”); Lombardo v. Dr. Seuss Enters., 279 F. Supp. 3d 497, 505 (S.D.N.Y. 2017), aff’d, 729
`F. App’x 131 (2d Cir. 2018) (“[A]lthough discovery might yield additional information about plaintiffs’ intent, such
`information is unnecessary to resolve the fair use issue [on a Rule 12(c) motion]; all that is needed is the parties’
`pleadings, copies of Grinch and the Play, and the relevant case law.”).
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`214 (2d Cir. 2015) (“[A] transformative use is one that communicates something new and
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`different from the original or expands its utility, thus serving copyright’s overall objective of
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`contributing to public knowledge.”). A secondary use “can be transformative in function or
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`purpose [even] without altering or actually adding to the original work.” Swatch Grp. Mgmt.
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`Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 84 (2d Cir. 2014) (quotation omitted). Moreover,
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`“courts have frequently afforded fair use protection to the use of copyrighted material in
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`biographies, recognizing such works as forms of historic scholarship, criticism, and comment
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`that require incorporation of original source material for optimum treatment of their subjects.”
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`Bill Graham, 448 F.3d at 609 (citing 17 U.S.C. § 107).
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`The Second Circuit’s decision in Bill Graham all but decides this case. The defendant in
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`that case published a coffee table book about the Grateful Dead that contained unlicensed images
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`of concert posters as part of a timeline of the band’s history. Id. at 607. The timeline runs
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`continuously throughout the book, chronologically combining approximately 2000 images
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`representing the band’s history with explanatory text; among the images were seven copyrighted
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`concert posters displayed in reduced form with captions describing the concerts that were
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`associated with the posters. Id.
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`The Second Circuit held that inclusion of these posters for an historical purpose
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`constituted fair use. Id. The Court first emphasized that the defendant’s “purpose in using the
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`copyrighted images at issue in its biography of the Grateful Dead is plainly different from the
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`original purpose for which they were created,” because the posters “fulfilled the dual purposes of
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`artistic expression and promotion,” whereas the defendant used the “images as historical artifacts
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`to document and represent the actual occurrence of the Grateful Dead concert events.” Id. at
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`609. The Court next considered how the images were used for scholarship, noting that no “less a
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`Case 1:19-cv-08606-VEC Document 17 Filed 07/13/20 Page 8 of 15
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`recognition of biographical value is warranted in this case simply because the subject made a
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`mark in pop culture rather than some other area of human endeavor.” Id. Finally, the Court
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`found that the matter in which the images were displayed in the book strengthened the
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`transformative nature of the use. Id. at 611. The book reproduced the posters in a reduced size,
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`in combination with textual material and graphical artwork, and the posters represented an
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`“inconsequential portion” of the book. Id.
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`The Met’s use of the Photo is analogous on all three dimensions. First, Plaintiff and the
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`Met used the Photo for entirely different purposes. Plaintiff asserts that he created the Photo to
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`show “what Van Halen looks like in Performance” and that “the original meaning” behind the
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`Photo was to “convey the message that Van Halen is a groundbreaking and unorthodox
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`musician.” Pl. Resp. at 5 (emphasis added). In contrast, the Met spotlights the “Frankenstein”
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`guitar—using the Photo to reference and contextualize the exhibition object, which Van Halen
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`pieced together himself “to achieve the ultimate guitar for tone, playability, dependability, and
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`functionality.” Compl., Ex. B; Steinman Decl., Ex. E. Just as the defendant in Bill Graham used
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`the concert poster “as a recognizable representation of the [Grateful Dead] concert,” 448 F.3d at
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`610 n.4, the Met used Plaintiff’s Photo as an historical artifact and a “recognizable
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`representation” of the “Frankenstein” guitar in action, Compl., Ex. B; Steinman Decl., Ex. E.9
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`Second, the Met used Plaintiff’s Photo in a scholarly context. Considering that the
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`“instruments used in rock and roll had a profound impact on this art form that forever changed
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`music,” the “Frankenstein” guitar is historically significant within the world of hard rock music.
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`The purpose of the Met’s use was arguably more different in its secondary use than the Bill Graham
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`defendant’s. In Bill Graham, both the original concert posters and the reproduced versions in the book conveyed
`information about the band’s concert—the primary difference being that the former conveyed information about the
`band’s forthcoming concert, while the latter documented and represented the actual occurrence of the band’s past
`concert. See 448 F.3d at 609. In the instant case, the Photo and the Met’s secondary use communicate
`fundamentally different messages: while the Photo originally showcased Van Halen, Pl. Resp. at 5, the secondary
`use shifts that focus to the “Frankenstein” guitar to visually contextualize its significance.
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`Case 1:19-cv-08606-VEC Document 17 Filed 07/13/20 Page 9 of 15
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`Steinman Decl., Ex. B. As with images in biographical books, museum exhibitions often
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`incorporate other source material for “optimum treatment of their subjects.” Bill Graham, 448
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`F.3d at 609. Plaintiff’s Photo is displayed on the biographical page for the exhibition object—
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`the very instrument depicted in the Photo—in order to “document and represent the [use of the
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`guitar],” id. at 610, that “spawned legions of copies . . . and inspired generations of fans to design
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`their own instruments,” Compl., Ex. B; Steinman Decl., Ex. E.
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`Plaintiff argues that the Met’s use is not transformative because the exhibition does not
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`critique the artistic merits of the Photo itself but “merely use[s] [it] as an illustrative aid to depict
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`the subjects featured” in the Photo. Pl. Resp. at 3–4 (quotation omitted). His argument
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`misunderstands the nature of the inquiry. What is relevant is not whether the exhibition
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`comments on the Photo per se, such as the photographer’s choice of lighting or focus, but
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`whether it uses the Photo to help illustrate the historical and artistic significance of the guitar—a
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`separate and distinct purpose from the Photo’s original expressive purpose. In Bill Graham, the
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`Second Circuit directly rejected the idea that the secondary use was required to comment on the
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`artistic value of the work when it found that “enhancing [] biographical information” was a
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`sufficient transformative purpose. 448 F.3d at 610–11.
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`Third, the Photo constitutes an “inconsequential portion” of the Met’s online catalogue.
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`Plaintiff’s Photo is a single image surrounded by pages of navigable textual, visual, and audio
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`content. Steinman Decl., Exs. B, C, and D. The Photo is located several page-clicks within the
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`actual catalogue of 185 object pages. Steinman Decl., Ex. D. And even on the “Frankenstein”
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`guitar’s page—the primary focus of which is historical and descriptive text and photographs of
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`the guitar—the Photo is almost an afterthought. Compl., Ex. B; Steinman Decl., Ex. E. In short,
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`the online catalogue’s layout is designed to enrich and elaborate the guitar’s historical
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`significance, primarily utilizing other photographs and text to do so. See Bill Graham, 448 F.3d
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`at 611 (finding further support for fair use where the defendant “minimized the expressive value
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`of the reproduced images by combining them with a prominent timeline, textual material, and
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`original graphical artwork” and where “the images appear on only seven pages” of the 480-page
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`book).
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`2.
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`Commercial Nature
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`In evaluating the purpose and character of the use, the Court must also consider “whether
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`such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107(1).
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`“The commercial/nonprofit dichotomy concerns the unfairness that arises when a secondary user
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`makes unauthorized use of copyrighted material to capture significant revenues as a direct
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`consequence of copying the original work.” Am. Geophysical Union v. Texaco Inc., 60 F.3d 913,
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`922 (2d Cir. 1994). But “because ‘nearly all’ fair uses of copyrighted works are conducted for
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`profit, the Second Circuit has cautioned that ‘the more transformative the new work, the less will
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`be the significance’ of the commercial sub-factor.” Prince, 265 F. Supp. 3d at 382 (alteration
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`omitted) (quoting Cariou v. Prince, 714 F.3d 694, 708 (2d Cir. 2013)).
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`Plaintiff argues that because the Met charges a general admission fee to out-of-town
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`visitors to the museum, it is a commercial enterprise and therefore the use at issue is commercial,
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`notwithstanding the Met’s status as a nonprofit organization.10 Pl. Sur-Reply at 2–3; see Def.
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`Reply at 11. While discovery might be helpful in providing additional information about the
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`Met’s revenue structure or how profitable this particular exhibition was, the relevant issue is not
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`Plaintiff asserts that “there can be no dispute that Defendant charges patrons admission to view Plaintiff’s
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`photograph on Fifth Avenue.” Pl. Resp. at 5. As noted in the main text, Defendant’s business model is not the
`critical issue given the transformative use, but it is worth noting that the only use complained of in the Complaint is
`the Met’s use of the Photo in the online catalogue of the exhibition, see supra note 3; there is no charge for viewing
`the online catalogue. Thus, despite Plaintiff’s rant in his sur-reply (“Plaintiff is entitled to discovery on the issue of
`how many people paid to see Plaintiff’s work . . . .”), Pl. Sur-Reply at 3, no one paid anything to see the use of the
`Photo complained of in the Complaint.
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`Case 1:19-cv-08606-VEC Document 17 Filed 07/13/20 Page 11 of 15
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`the Met’s business model but whether the use at issue is commercial in nature. Even in the
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`unlikely event that discovery would reveal that Plaintiff’s Photo drove viewers to visit the Met’s
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`galleries and pay admission fees, the Court would not place much significance on that fact due to
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`the transformative nature of the secondary use.
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`In short, the first factor strongly favors a finding of fair use.
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`B. Nature of the Copyrighted Work
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`The second fair use factor considers “(1) whether the work is expressive or creative, . . .
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`with a greater leeway being allowed to a claim of fair use where the work is factual or
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`informational, and (2) whether the work is published or unpublished, with the scope for fair use
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`involving unpublished works being considerably narrower.” Cariou, 714 F.3d at 709–10
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`(quotation omitted).
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`The Photo is indisputably creative and published. See Monster Commc’ns, Inc. v. Turner
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`Broad. Sys., Inc., 935 F. Supp. 490, 494 (S.D.N.Y. 1996) (“[P]hotographic images of actual
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`people, places and events may be as creative and deserving of protection as purely fanciful
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`creations.”). While ordinarily the creative nature of the Photo would weigh in favor of the
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`copyright holder, the second factor has limited weight in this analysis because the transformative
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`purpose of the Met’s use “was to emphasize the [Photo’s] historical rather than creative value.”
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`Bill Graham, 448 F.3d at 612–13; see Blanch, 467 F.3d at 257 (“[T]he second factor may be of
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`limited usefulness where the creative work of art is being used for a transformative purpose.”
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`(quotation omitted)); see also Authors Guild, 804 F.3d at 220 (“The second factor has rarely
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`played a significant role in the determination of a fair use dispute.”).
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`The second fair use factor weighs minimally, if at all, against a finding of fair use.
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`C. Amount and Substantiality of the Portion Used
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`The third fair use factor asks whether “the quantity and value of the materials used[] are
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`reasonable in relation to the purpose of the copying.” Campbell, 510 U.S. at 586 (quotation
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`omitted). Although the Second Circuit has never “ruled that the copying of an entire work favors
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`fair use,” “such copying does not necessarily weigh against fair use because copying the entirety
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`of a work is sometimes necessary to make a fair use of the image.” Bill Graham, 448 F.3d at
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`613. Thus, “the third-factor inquiry must take into account that ‘the extent of permissible
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`copying varies with the purpose and character of the use.’” Id. (quoting Campbell, 510 U.S. at
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`586–87).
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`While the Photo is displayed in its entirely, such use is reasonable in light of the purpose
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`and character of the use. The Met uses the Photo as an historical artifact providing visual context
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`for the exhibition object and the accompanying factual information about the object. Compl.,
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`Ex. B; Steinman Decl., Ex. E. In order to achieve this purpose, it is reasonable that the Met
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`included the full picture of Van Halen playing the “Frankenstein” guitar. Cf. Kelly v. Arriba Soft
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`Corp., 336 F.3d 811, 821 (9th Cir. 2003) (“If Arriba only copied part of the image, it would be
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`more difficult to identify it, thereby reducing the usefulness of the visual search engine.”).
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`Moreover, the Met reduced the size of the Photo and mixed it with text and other photographs,
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`limiting the visual impact of the Photo’s artistic expression. See Bill Graham, 448 F.3d at 613
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`(“We conclude that such use by [the defendant] is tailored to further its transformative purpose
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`because [defendant’s] reduced size reproductions of [the plaintiff’s] images in their entirety
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`displayed the minimal image size and quality necessary to ensure the reader’s recognition of the
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`images as historical artifacts of Grateful Dead concert events.”).
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`Case 1:19-cv-08606-VEC Document 17 Filed 07/13/20 Page 13 of 15
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`In this case, the secondary use was limited and focused on the historical nature of the
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`Photo; the third factor thus does not weigh against a finding of fair use.
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`D. Effect of the Use Upon the Market for or Value of the Original
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`The final fair use factor is “the effect of the use upon the potential market for or value of
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`the copyrighted work.” 17 U.S.C. § 107(4). This analysis is concerned with “whether the
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`secondary use usurps the market of the original work.” Blanch, 467 F.3d at 258 (emphasis
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`added) (quotation omitted). It “focuses on whether the copy brings to the marketplace a
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`competing substitute for the original, or its derivative, so as to deprive the rights holder of
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`significant revenues because of the likelihood that potential purchasers may opt to acquire the
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`copy in preference to the original.” Authors Guild, 804 F.3d at 223. As with the other factors,
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`“this factor is also influenced by the resolution of the transformativeness inquiry” because “the
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`more transformative the secondary use, the less likelihood that the secondary use substitutes for
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`the original.” Prince, 265 F. Supp. 3d at 384 (quotation omitted).
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`The Second Circuit has made clear that a “transformative market” does not qualify as a
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`“traditional market.” See Bill Graham, 448 F.3d at 615 (holding that because the defendant’s use
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`of the copyrighted images as historical artifacts “falls within a transformative market, [the
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`plaintiff] does not suffer market harm due to the loss of license fees”). And with respect to the
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`“traditional market,” a court must “look at the impact on potential licensing revenues for
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`traditional, reasonable, or likely to be developed markets,” not, simply, that the defendant failed
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`to pay a licensing fee. Id. at 614 (quotation omitted).
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`Plaintiff argues that museums are a potential market for his work because they are
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`shifting towards more modern, pop-culture centered exhibits. Pl. Sur-Reply at 6–7. He requests
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`discovery to establish whether that market is “likely to be [a] developed market.” Id. at 7. But
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`Case 1:19-cv-08606-VEC Document 17 Filed 07/13/20 Page 14 of 15
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`Plaintiff “cannot prevent others from entering fair use markets merely by developing or licensing
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`a market [for] transformative uses of [his] own creative work.” Bill Graham, 448 F.3d at 615
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`(quotation omitted). A traditional market for the Photo would be collectors of photographs of
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`rock legends or other persons seeking to showcase Van Halen. Being generous, that market
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`might even extend to museums exhibiting musicians. But the Met’s use of the Photo to visualize
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`the “Frankenstein” guitar as played by Van Halen falls into a different, transformative market. It
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`is thus unlikely that markets for the Photo’s original expressive purpose would be affected in any
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`way. In any event, Plaintiff has offered only conclusory assertions that the Met’s use has caused
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`“a meaningful or significant effect upon the potential market for the copyrighted work.” Authors
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`Guild, 804 F.3d at 224 (quotation omitted).
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`Accordingly, the fourth fair use factor weighs in favor of a finding of fair use.
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`E. Balance of Factors
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`The Court finds that the balance of the fair use factors strongly favors the Met’s use. The
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`first and most important factor weighs heavily towards a finding of fair use and significantly
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`colors the other three factors. The Met’s use of the Photo to present the “Frankenstein” guitar as
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`an historical artifact is transformatively different from the original expressive purpose of the
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`Photo. The second factor, which might otherwise favor Plaintiff, therefore, has limited weight.
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`Similarly, although Plaintiff’s Photo was copied in its entirety, the third factor does not weigh
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`against fair use because the amount of the Photo used is reasonable in light of the transformative
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`pur