A guitar made and played by Eddie Van Halen of Van Halen is displayed at the exhibit "Play It Loud: Instruments of Rock & Roll" at the Metropolitan Museum of Art in New York. Photo: Seth Wenig/AP

The Second Circuit was considering whether to uphold a trial court's ruling that the picture was used for the educational purpose of "contextualizing" a famed guitar on display in an exhibition, while an attorney said the photo, which captured Van Halen in performance, was improperly used "literally" and "wholesale."

James Freeman, who represents music-industry photographer Larry Marano, argued that the Met's inclusion of the photo, capturing Van Halen playing his famed "Frankenstein" guitar in concert, in an online catalog promoting its 2019 exhibition "Play It Loud: Instruments of Rock & Roll" was not protected by the fair-use doctrine, which allows for the unlicensed use of copyright-protected works in certain instances.

A Manhattan federal judge dismissed the case last summer, finding that the Met had focused on the guitar itself and only used the photo to reference and contextualize the instrument as a historical artifact in its exhibit. That "transformative" use, as well as its "scholarly" function for the museum, both supported a finding of fair use, U.S. District Judge Valerie E. Caproni of the Southern District of New York reasoned in a July 13 decision.

On Monday Freeman cast the Met's use amounted to a "literal, wholesale reproduction" of his client's photo, and argued that the museum should not be given free rein to use it without permission.

"Plaintiff submits that while all members of society can appreciate the important function that museums provide, the Met is not an arm of the state, like a public university, and should not be afforded an unfettered right to display wholesale reproductions of photographs under the color of scholarship without first obtaining permission from the photographer," said Freeman, a partner with the Liebowitz Law Firm in Valley Stream.

However, Judge John M. Walker Jr. of the U.S. Court of Appeals for the Second Circuit, who sat on the three-judge panel hearing Marano's appeal, credited the district court's finding that the "whole focus" of the exhibit was the Frankenstein guitar itself.

"So that's the focus, as opposed to the artistry of Van Halen, and the appearance of Van Halen in concert, which was, I think, the purpose of your client's picture," Walker responded.

Linda Steinman, a Davis Wright Tremaine partner who represented the Met, meanwhile, called the case an example of "classic transformative use." It was clear from the Met's catalog, she said, that the museum was using the photograph as a historical artifact to depict the guitar in action.

"The photograph is not used in its expressive fashion as a concert photo but in a factual, historical fashion, as an artifact of what actually occurred," Steinman argued.

"We don't need discovery here," she added. "It's evident … what the purpose of his photograph is."

The panel, which also included Judge William J. Nardini of the Second Circuit and U.S. District Judge John L. Sinatra Jr. of the Western District of New York, adjourned the arguments without a ruling on Marano's appeal. Sinatra sat on Monday's panel by designation.

The case is captioned Marano v. Metropolitan Museum of Art.

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