This one upholding the use of the plaintiff's photo of Eddie Van Halen playing guitar in an exhibition of rock n’ roll instruments on the Met’s website. Story here. Opinion here.
The use passed the transformativeness test because "the exhibition transformed the Photo by foregrounding the instrument rather than the performer." Whereas the photographer's "stated purpose" in creating the photo was to show “what Van Halen looks like in performance,” the Met exhibition "highlights the unique design of the [depicted] guitar and its significance in the development of rock n’ roll instruments." Further, "the Photo appears alongside other photographs showing the physical composition of the guitar, which are collectively accompanied by text discussing the guitar’s genesis, specifications, and impact on rock n’ roll music, not Van Halen’s biography or discography. This context 'adds something new, with a further purpose or different character, altering the [Photo] with new expression, meaning, or message.'"
There you have it. Totally consistent with Warhol, and with Cariou before it. I think the principle in the Second Circuit is that there will be a finding of fair use, as a matter of law, when the use in question is fair, and, conversely, there will be a finding of no fair use when the use in question is not fair. All crystal clear.
