Word has reached these shores of a fair use case in the USA involving legendary 70s music photographer Neil “Zloz” Zlozower who sued The Rock & Roll Hall of Fame and Museum (RRHOF), a non-profit organisation, for copyright infringement. 

The background to the case centres on two images licensed to the RRHOF Museum  – one image was a group photo of the rock band Van Halen and the other image was of lead guitarist Eddie Van Halen (EVH) posed with his “Frankenstein” guitar.  The Museum created an eight-foot cut out display of EVH and his guitar from the group photo, removing the other band members; and in the other photograph EVH’s image was cropped to portray his upper body and him  with his raised guitar. Both images were displayed in context with the Museum’s featured exhibition of EVH’s guitars, amplifiers and effects pedals, with texted placards and a video interview with EVH. 

The court found that the RRHOF Museum’s use of the photographs was transformative “fair use” in applying the four-stage test.

1. The purpose and character of the use was illustrating and contextualizing the guitars and equipment in the exhibition; 
2. The nature of the copyrighted work was creative and expressive but unclear whether the images had ever been published;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole was reasonable and necessary to use full images of EVH with his “Frankenstein” guitar; 
4. The effect of the use upon the potential market for or value of the copyrighted work failed due to insufficient facts establishing the Museum’s use harmed the market for Zlozower’s photographs.

The takeaway from the court’s decision is that when licensing photographs it is important to establish the licensed usage when agreeing terms with the client.  In the above case, licensing photographs to museums would imply that the intended use of the images might be for displays and catalogs linked to exhibitions.  Once the intended usage is established, a relevant licence can be agreed saving both parties the cost of litigation.