A copyright fight after using a photo pits veteran rock photographer Neil Zlozower against the Rock & Roll Hall of Fame over fair use and licensing. A Cleveland judge has sided with the Rock Hall, but the story is far from over.
— an institution built to celebrate the people who make the culture — finds itself on the other side of a copyright fight after using a photo by veteran rock photographer Zlozower, whose images have defined the look of hard rock and metal for decades, sued the museum for copyright infringement.
The outcome has raised eyebrows across the creative world — especially among photographers who say the case, if it stands, could weaken long-standing norms about compensating artists. Intellectual property attorney-partner Daniel J. McMullen of Calfee, Halter & Griswold LLP told Cleveland.com and The Plain Dealer that fair use is a “challenging doctrine for copyright law,” though a multifactor process is supposed to help. While he had no comment about the ruling, McMullen did say that fair use has always been a “complex subject to adjudicate” and “a source of frustration that even reasonable people can disagree about.”Zlozower’s complaint centers on how his work was used in the museum’s “Play It Loud: Instruments of Rock & Roll” exhibit. The Rock Hall acknowledged using the images, including one reproduced at a large scale in a display about Eddie Van Halen’s guitar. There was no license and no payment. Under most circumstances, that would point to a straightforward copyright violation. Instead, the Hall leaned on a different argument: that the museum’s purpose was educational and historical, not commercial. In their view, Zlozower’s photo was used to illustrate a story about Van Halen’s instrument, not to present or sell the photograph itself. Judge Christopher A. Boyko agreed and dismissed the case, calling the Hall’s use “transformative” and not harmful to the market for Zlozower’s original work. It’s a decision that may not sit well with many artists who’ve spent years fighting for recognition and proper compensation. Photographers especially operate in an ecosystem where licensing fees are often the only consistent income. When a major cultural institution — one that employs curators, lawyers, and archivists — sidesteps that system, it feels less like a “technical dispute” and more about how creative labor is valued.“Fair use” is a legal concept that allows copyrighted work to be used without permission in limited contexts, generally for commentary, criticism, education, or historical explanation. Courts weigh four key factors of “fair use”: 1) purpose and character of the use; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used, and 4) the effect of the use on the potential market for the copyrighted work. In this case, the judge determined the Rock Hall’s display was “transformative” — that the photo served a new function within the exhibit — and did not meaningfully interfere with Zlozower’s licensing market. That combination was enough to tip the balance toward fair use. Whether future courts will see it the same way remains to be seen.Yes, indeed. What’s more, outcomes have been mixed — which is part of what makes this ruling so contentious.In that case, the court also sided with the museum—ruling the display was “transformative” because it focused on the guitar, not the musician, and didn’t compete with the original photograph’s market. Supreme Court ruled in 2023 against the Andy Warhol Foundation in its dispute with photographer Lynn Goldsmith , finding Warhol’s use of her photo in a series of portraits did not qualify as fair use because both works served similar commercial purposes. That ruling signaled context and market impact remain central to the analysis — and that “transformation” alone isn’t enough. The Rock Hall case now falls somewhere in between these precedents, which could produce an appeal with a different result.“It can be a slippery-sloped and indeed it was a slippery slope,” said attorney Mark Avsec, partner and vice chair of the Intellectual Property Group of Benesch, Friedlander, Coplan & Aronoff. Avsec was part of the funk-rock band Wild Cherry and was an original member of Donnie Iris & the Cruisers. The keyboardist-songwriter wrote or co-wrote all the latter band’s music, was its sole lyricist and produced all of its albums. “ases started evolving to where any derivative work based on a copyrighted work was almost by definition transformative and therefore a fair use,” he said. “That can’t be right. A copyright owner’s ability to authorize or not authorize derivative works based on the copyrighted work is an important right under the Copyright Act.”The high court ruled as it did “because both the original Goldsmith photo of Prince and Warhol’s silkscreen based on it served a similar commercial purpose – illustrating a magazine about the musical artist Prince – the use was not transformative under the first fair use factor despite the added expression.”Given his work for the Rock & Roll Hall of Fame, his creative career and his teaching “Law of the Music Industry” at Case Western Reserve University’s law school, it’s logical that “fair use” is a part of his class.“The Museum’s use added new meaning to Mr. Zlozower’s original photograph,” Avsec said. “It used the photograph to illustrate the importance of Eddie Van Halen’s guitar in the history of rock and roll. The mission of the museum, a non-profit entity, is to engage, teach, and inspire through the power of rock and roll.” The Museum would not inspire if it could not rely on certain photographs, films, and/or music from time to time in connection with teaching.“I teach a law school class. If I made 50 copies of a textbook and distributed the copies to my class, while that may be for educational purposes, I don’t think that’s fair ,” he said. The textbook author’s purpose in writing the book was to sell it to students but in this scenario, the class does not have to purchase it now, Avsec said – adding “I copied too much.”“If a documentary filmmaker was making a film about my relationship with Donnie Iris and used 10 seconds of “Ah! Leah!” – a song I wrote – in the film without a license, I’d say that is likely a fair use even if the documentary filmmaker intends to monetize the film.”Cleveland.com Life & Culture Editor / Managing Producer Peter Chakerian has been called one of the region's "most interested" people. The award-winning writer, author and journalist has been featured in dozens...If you purchase a product or register for an account through a link on our site, we may receive compensation.and agree that your clicks, interactions, and personal information may be collected, recorded, and/or stored by us and social media and other third-party partners in accordance with our
Rock-Hall Rock-And-Roll-Hall-Of Fame Neil-Zlozower Photography Legal-Rights Fair-Use Copyright-Infringement Section:/Entertainment
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