Zlozower v. Rock and Roll Hall of Fame and Museum, Inc.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
NEIL ZLOZOWER, ) CASE NO. 1:24CV1817
)
Plaintiff, ) JUDGE CHRISTOPHER A. BOYKO
)
vs. ) OPINION AND ORDER
)
THE ROCK AND ROLL HALL OF )
FAME AND MUSEUM, INC., )
Defendant. )
CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Motion (ECF DKT #23) of Defendant The
Rock and Roll Hall of Fame and Museum for Judgment on the Pleadings. For the following
reasons, the Motion is granted. Plaintiff has filed a Motion (ECF DKT #27) for Leave to Submit
Second Joint Planning Report and Motion for Second Case Management Conference. In light of
this ruling, Plaintiff’s Motion is denied as moot.
I. BACKGROUND
Plaintiff Neil Zlozower is a professional photographer who has spent decades capturing
images of legendary rock bands. His photographs appear on a multitude of magazine covers and
album sleeves. He has published six photography books, including Van Halen: A Visual History
and Six-String Heroes. Defendant is an Ohio non-profit corporation (described in Internal
Revenue Code § 501(c)(3)) that carries out its charitable mission, in part, by operating a museum
which collects, preserves, exhibits and interprets rock-and-roll music as an art form.
Plaintiff filed his First Amended Complaint on July 10, 2025 (ECF DKT #21), asserting a
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claim for Direct Copyright Infringement against Defendant under the Copyright Act, 17 U.S.C.
§ 101, et seq. Plaintiff created a photograph of the American rock band Van Halen (Photograph
#1) and of the musician Edward Lodewijk Van Halen (Photograph #2). Plaintiff is the author of
both Photographs and responsible for their publication. On January 31, 2017, the Photographs
were registered with the United States Copyright Office under Registration No. VA 2-042-825.
Plaintiff created the Photographs to document and memorialize the rock group
Van Halen with the intention of them being for the purpose [sic] public
distribution and display in various forms including but not limited to magazines
[sic] covers, inside use, centerfolds, album covers, cd covers, advertisements for
the equipment/musical instruments in the world, book covers and inside book
usage, documentaries, movies, collector prints, songbook covers, VHS and DVD
covers, publicity shots, advertising shots, authentication usage, billboards, Namm
show full life size stand up images, for detailed reference to make miniature
models of musicians, images on vinyl picture discs, tour programs, merchandising
tee shirts/apparel, and various merchandising products, (bar stools, clocks, bed
sheets and comforters, beverage mugs, guitar picks, trading cards, and buttons.
(First Amended Complaint, ECF DKT #21, ¶ 31).
Defendant, allegedly without permission or authorization, actively copied and displayed
Photographs #1 and #2 in the Museum. Defendant displayed Photograph #1 as part of an 8' tall
image in the Museum and displayed Photograph #2 as part of a placard alongside. Defendant did
not include any photo credit or mentions as to the source of the Photographs. The infringing
images are exact copies of critical portions of Plaintiff’s original Photographs. Plaintiff alleges:
“Upon information and belief, Defendant received a financial benefit directly attributable to the
Infringements.” (ECF DKT #21, ¶ 53). Defendant’s unlicensed use of the Photographs was
“commercial in nature” and “added nothing new or transformative to the Photographs.” (ECF
DKT #21, ¶¶ 59-60). “Defendant, museums, and art exhibitions are part of Plaintiff’s licensing
markets for his works.” (ECF DKT #21, ¶ 34). Defendant’s use of the Photographs “harmed the
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actual market for the Photographs” and “if widespread, would harm Plaintiff’s potential market
for the Photographs.” (ECF DKT #21, ¶¶ 64-65).
In its Answer (ECF DKT #22), Defendant admits as undisputed that it is registered as an
Ohio non-profit corporation with the charitable mission of operating a museum which collects,
preserves, exhibits and interprets rock-and-roll music as an art form. (¶ 35). Further, Defendant
asserts the doctrine of fair use as an affirmative defense: Defendant “included a small portion of
Photograph 1 (the full Van Halen band), and a portion of Photograph 2 (Eddie Van Halen, alone),
alongside a collection of Eddie Van Halen’s guitars, his amplifiers, his effects units, as well as
interpretive educational text and placards, and a multimedia video interview with Eddie Van
Halen, in its “Play It Loud: Instruments of Rock & Roll” exhibit celebrating the musical
instruments that gave rock and roll its signature sound.” (Affirmative Defense #6). Defendant’s
“transformative use of the Photographs, in furtherance of its non-profit mission to engage, teach,
and inspire through the power of rock & roll, was of a limited nature that was reasonably
necessary to contextualize the historical musical instruments on display in the Museum Exhibits,
had no effect on the potential market for or value of the copyrighted work, and consequently
qualifies as permissible fair use for which there can be no liability under 17 U.S.C. § 107.” Id.
Defendant moved for judgment on the pleadings on August 4, 2025. The matter has been
fully briefed and is ripe for decision.
II. LAW AND ANALYSIS
Fed.R.Civ.P. 12(c) Standard of Review
After the pleadings are closed, but within such time as not to delay the trial, any party
may move for judgment on the pleadings. Fed.R.Civ.P. 12©). In this jurisdiction, “[t]he
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standard of review for a judgment on the pleadings is the same as that for a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6) . . . We ‘construe the complaint in the light
most favorable to the plaintiff, accept all of the complaint’s factual allegations as true, and
determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims
that would entitle relief.’” Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d
383, 389 (6th Cir. 2007) (citations omitted). The pleading does not have to demonstrate
probability; rather, “just enough factual information to create an expectation that discovery
will uncover evidence supporting the claim.” Haber v. Rabin, No. 1:16CV546, 2016 WL
3217869, at *3 (N.D.Ohio Jun.10, 2016), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007).
The court’s decision “rests primarily upon the allegations of the complaint;” however,
“exhibits attached to the complaint [] also may be taken into account.” Barany-Snyder v. Weiner,
539 F.3d 327, 332 (6th Cir. 2008) (citation omitted) (brackets in the original).
The court need not accept as true legal conclusions or unwarranted factual inferences.
Lewis v. ACB Bus. Servs., 135 F.3d 389, 405 (6th Cir. 1998). The complaint must state a
plausible claim for relief. “Plausibility is a context-specific inquiry, and the allegations in the
complaint must ‘permit the court to infer more than the mere possibility of misconduct,’
namely, that the pleader has ‘show[n]’ entitlement to relief.” Center for Bio-Ethical Reform,
Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011). Dismissal is warranted if the complaint
lacks an allegation as to a necessary element of the claim raised. Craighead v. E.F. Hutton &
Co., 899 F.2d 485 (6th Cir. 1990).
Lastly, a Rule 12(c) motion “is granted when no material issue of fact exists and the
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party making the motion is entitled to judgment as a matter of law.” Paskvan v. City of
Cleveland Civil Serv. Comm’n, 946 F.2d 1233, 1235 (6th Cir. 1991).
Copyright Infringement
The owner of a copyright has the exclusive rights (1) to “reproduce the copyrighted
work”; (2) to “prepare derivative works”; (3) to “distribute copies”; (4) to “perform the
copyrighted work publicly”; and (5) to “display the copyrighted work publicly.” 17 U.S.C.
§ 106(1)–(6).
“A plaintiff may bring a claim against a person who infringes any of the plaintiff's
exclusive rights in a copyright under § 106 by demonstrating two elements: ‘(1) ownership of a
valid copyright; and (2) copying of constituent elements of the work that are original.’ ”
Stromback v. New Line Cinema, 384 F.3d 283, 293 (6th Cir. 2004) (quoting Feist Publ'ns. v.
Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)); accord Enchant Christmas Light Maze & Mkt.
Ltd. v. Glowco LLC, 958 F.3d 532, 536 (6th Cir. 2020); Kohus v. Mariol, 328 F.3d 848, 853 (6th
Cir. 2003).
Fair Use Doctrine
“The purpose of the fair-use doctrine is to ensure that courts ‘avoid rigid application of
the copyright statute when, on occasion, it would stifle the very creativity which that law is
designed to foster.’ ” Zomba Enters. v. Panorama Recs., 491 F.3d 574, 581 (6th Cir. 2007)
(quoting Princeton Univ. Press v. Mich. Document Servs., 99 F.3d 1381, 1385 (6th Cir. 1996)).
17 U.S.C. § 107
[T]he fair use of a copyrighted work, including such use by reproduction in
copies or phonorecords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching (including
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multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright. In determining whether the use made of a work in
any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.
These four non-exclusive factors should not be treated in isolation but must all be
weighed in light of the aims of copyright protection.
“Fair use” is considered a “mixed question of law and fact.” Harper & Row Publishers
v. Nation Enter., 471 U.S. 539, 560 (1985). Also, “fair use” is an “open-ended and context-
sensitive inquiry.” Blanch v. Koons, 467 F.3d 244, 251 (2d Cir. 2006). Nevertheless, an
affirmative defense of fair use can be considered at the motion to dismiss stage, even post-Andy
Warhol Foundation for the Visual Arts v. Goldsmith, 598 U.S. 508 (2023). See the examples
listed in Breeden Media LLC v. Daily Wire LLC, 3:24-cv-00723, 2024 WL 5239886, *5 (M.D.
Tenn. Dec. 27, 2024):
[T]here is no indication that the Supreme Court's decision in Andy Warhol
Foundation for the Visual Arts v. Goldsmith, 598 U.S. 508 (2023), has changed
this rule. See, e.g., Santos v. Kimmel, No. 24cv1210 (DLC), 2024 WL 3862149,
at *3 (S.D.N.Y. Aug. 19, 2024) (dismissing copyright claims on a 12(b)(6) motion
based on fair use); McGillvary v. Netflix, No. 2:23-cv-01195-JLS-SK, 2024 WL
3588043, at *9 (C.D. Cal. July 30, 2024) (same); Strom v. Petershagen, No.
2:24-cv-00583-BAT, 2024 WL 3638056, at *8 (W.D. Wash. Aug. 2, 2024)
(same); Atari Interactive. v. State Farm Mut. Auto. Ins. Co., No.
3:24-CV-0704-D, 2024 WL 4343050, at *2 (N.D. Tex. Sept. 27, 2024) (“In the
copyright realm, fair use is an affirmative defense that can support Rule 12(b)(6)
dismissal.” (quoting Bell v. Eagle Mountain Saginaw Indep. Sch. Dist., 27 F.4th
313, 320 (5th Cir. 2022)); see also In Lux Rsch. v. Hull McGuire, No. 23-523
(JEB), 2024 WL 774858, at *3 (D.D.C. Feb. 26, 2024) (noting that fair use can be
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decided before discovery in exceptional cases). Breeden, 2024 WL 5239886, *5.
1. Purpose and Character of Use
For this factor, the Court examines whether Defendant’s use is transformative and
whether the use has a commercial purpose. The Supreme Court instructs that a work is
transformative where it “adds something new, with a further purpose or different character,
altering the first with new expression, meaning, or message.” Campbell v. Acuff-Rose Music,
Inc., 510 U.S. 569, 579 (1994); Andy Warhol Found. for Visual Arts, Inc., 11 F.4th 26, 37 (2d
Cir. 2021).
Transformative works further “the goal of copyright, to promote science and the arts.”
Campbell, 510 U.S. at 579.
Significantly, a secondary work “can be transformative in function or purpose without
altering or actually adding to the original work.” Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg
L.P., 756 F.3d 73, 84 (2d Cir. 2014). Also, in Bill Graham Archives v. Dorling Kindersley Ltd.,
448 F.3d 605 (2d Cir. 2006), the defendant published a coffee table book containing exact
unlicensed copies (though reduced in size) of Grateful Dead concert posters; yet, the Second
Circuit held that the use of the poster images as historical artifacts was transformative.
According to Plaintiff’s First Amended Complaint (ECF DKT #21 at ¶ 31): “Plaintiff
created the Photographs to document and memorialize the rock group Van Halen with the
intention of them being for the purpose [sic] public distribution and display in various forms . . .”
(Emphasis added).
At ¶ 25, Plaintiff alleges that he shot three live shows and a backstage photo session with
the band prior to an Oakland concert.
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Further, at ¶ 26: “Plaintiff’s hope in creating the images would be to portray the band
members as fun-loving, good-looking party band so that they could tease their fans before the
release of their second album.” (Emphasis added).
On the other hand, Defendant’s “Play It Loud: Instruments of Rock & Roll” exhibit
celebrated “the musical instruments that gave rock and roll its signature sound” and used the
“Photographs—as but one of many design elements in its expertly curated exhibit furthering its
nonprofit educational purposes . . . as an historical artifact that contextualizes the significance of
the exhibition objects: namely, its guitars and related sound equipment.” (Answer, ECF DKT
#22, Affirmative Defense #6).
Looking at Plaintiff’s Photographs and Defendant’s Exhibit side-by-side and in light of
copyright law, the Court finds that Defendant’s use adds new meaning and is transformative.
This is true although the copying is nearly exact. Defendant cropped out of Photograph #1 all the
band members but Eddie Van Halen and his guitar, and enlarged that image to an 8-foot display.
Photograph #2 was altered by Defendant to show Eddie Van Halen’s upper body raising the
guitar. The year the artist was inducted into the Rock Hall (2007) was added and the image was
placed alongside informational placards and in front of guitar replicas, speakers and amplifiers.
Defendant’s clear purpose was not to promote the band nor to emphasize the band’s fun-
loving nature as Plaintiff alleges was his intent. Defendant’s focus is on Eddie Van Halen only
and on “Frankenstein,” his guitar, illustrating the significance of the instrument in the history of
rock and roll.
The consideration that a use is commercial as opposed to non-profit or charitable is an
additional element of the fair use factor. However, the commercial nature of a use can be
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relevant but not necessarily dispositive. Google LLC v. Oracle America, Inc., 593 U.S. 1, 32
(2021). “[G]iven that much of the creative work performed in this country is done for
commercial purposes, this second point tends to take on less significance, especially when the
new work is highly transformative.” See Zomba Enters. v. Panorama Recs., 491 F.3d 574, 581
(6th Cir. 2007).
Plaintiff alleges: “Defendant charges admission despite generating a profit each year
from its operations.” (ECF DKT #21, ¶ 5). “Upon information and belief, Defendant received a
financial benefit directly attributable to the Infringements.” (Id. at ¶ 53). “Defendant’s
unlicensed use was commercial in nature.” (Id. at ¶ 59).
Putting aside that the last allegation is a legal conclusion and not a factual averment, the
Court is persuaded by the reasoning in Marano v. Metropolitan Museum of Art, 472 F.Supp.3d
76 (S.D. N.Y. 2020), which involved a Van Halen photograph by a different photographer which
was included in the Met’s online catalogue for the “Play It Loud: Instruments of Rock & Roll”
Exhibition. The New York court dismissed the Complaint; and with regard to commercialism,
opined:
[T]he relevant issue is not the Met’s business model but whether the use at issue
is commercial in nature. Even in the unlikely event that discovery would reveal
that Plaintiff’s Photo drove viewers to visit the Met’s galleries and pay admission
fees, the Court would not place much significance on that fact due to the
transformative nature of the secondary use. Marano, 472 F.Supp.3d at 86.
Defendant admits that it charges an admission fee albeit with some exceptions; but
Plaintiff makes no allegation that a fee was charged to view this particular Exhibit. Even
construing the allegations of the Amended Complaint in Plaintiff’s favor, the Court finds that the
alleged commercial aspect of Defendant’s use of Plaintiff’s Photographs does not overcome
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Defendant’s transformative purpose nor negate the fair use defense. Google LLC, 593 U.S. at 32.
2. Nature of Copyrighted Work
The second fair use factor requires the Court to consider the “nature of the copyrighted
work,” including whether (1) it is “expressive or creative ... or more factual, with a greater
leeway being allowed to a claim of fair use where the work is factual or informational,” and
(2) “the work is published or unpublished, with the scope of fair use involving unpublished
works being considerably narrower.” Andy Warhol Found. for Visual Arts, Inc., 11 F.4th at 45;
Balsley v. LFP, 691 F.3d 747, 759 (6th Cir. 2012).
Plaintiff is a renowned photographer who chose the lighting, angles, framing, perspective,
depth, lenses and camera equipment for Photographs #1 and #2. Therefore, the Court finds that
Plaintiff's work is expressive and creative rather than factual and informational.
However, were the Photographs published? It is not clear from the First Amended
Complaint whether or not the photos at issue were included in Plaintiff’s book, Van Halen: A
Visual History and Six-String Heroes. Plaintiff does allege that he intended the Photographs for
public distribution and display in various forms of media. (ECF DKT #21, ¶ 31).
Balancing each aspect of the second factor, the Court finds that it weighs only slightly in
Plaintiff’s favor and against fair use.
3. Amount and Substantiality of the Portion Used
This third factor focuses on the amount of the allegedly infringed work that was taken by
the alleged infringer. Zomba Enters., 491 F.3d at 583. “[T]he court should consider both the
‘quantity’ and ... the ‘value’ of the materials taken[;] that is, the court should consider whether
the amount taken was ‘reasonable in relation to the purpose of the copying.’ ” House of Bryant
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Publ’ns, v. A & E Television Networks, No. 3:09-0502, 2009 WL 3673055 at *7 (M.D. Tenn.
Oct. 30, 2009) (quoting Campbell, 510 U.S. at 586).
“Copying the entirety of a work is sometimes necessary to make a fair use of the image.”
Bill Graham, 448 F.3d at 613. Defendant’s undisputed purpose was to illustrate the importance
of certain instruments to the history of rock-and-roll music. It was reasonably necessary for
Defendant to include full images of Eddie Van Halen playing the “Frankenstein” guitar.
The Court finds that the third factor does not weigh against Defendant’s fair use defense.
4. Effect of the Use Upon the Market for or Value of the Original
The Court has already determined that the commercial nature of Defendant’s use of the
Photographs is minimal.
“[E]very commercial use of copyrighted material is presumptively an unfair exploitation
of the monopoly privilege that belongs to the owner of the copyright.” Sony Corp. of Am. v.
Universal City Studios, Inc., 464 U.S. 417, 451 (1984).
The analysis of the fourth factor involves whether Defendant brought to the marketplace a
competing substitute for the Photographs or their derivative, so as to deprive Plaintiff of revenues
“because of the likelihood that potential purchasers may opt to acquire the copy in preference to
the original.” Authors Guild v. Google, Inc., 804 F.3d 202, 222 (2d Cir. 2015). The market
factor asks whether the secondary use “usurps the market for the first by offering a competing
substitute.” Andy Warhol Found. for Visual Arts, Inc., 11 F4th at 48, citing Bill Graham, 448
F.3d at 614. The Court considers not only the extent of market harm caused by Defendant’s
particular actions, but also whether unrestricted and widespread conduct of the sort engaged in by
Defendant would result in a substantially adverse impact on the potential market for the
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Photographs. The impact on Plaintiff’s actual or potential market must be significant and
substantial. Authors Guild, 804 F.3d at 224.
Plaintiff alleges that he “also licensed images for museum usage” (ECF DKT #21, ¶ 32);
and conclusorily asserts, “Defendant’s use of the Photographs harmed the actual market for the
Photographs” and “Defendant’s use of the Photographs, if widespread, would harm Plaintiff’s
potential market for the Photographs.” (ECF DKT #21, ¶¶ 64-65).
Reading the First Amended Complaint liberally in Plaintiff’s favor, there is no factual
allegation that Defendant reproduced the original works for sale or publication in a media which
would compete with Plaintiff’s photography books or other listed uses. Plaintiff does not allege
that he specifically licensed Photographs #1 and #2 to museums nor that Defendant usurped the
market by licensing the Photographs to other museums. It is unlikely that the expressive purpose
of Plaintiff’s Photographs would be affected in any significant or meaningful way by Defendant’s
use. Thus, the fourth factor weighs in Defendant’s favor.
III. CONCLUSION
Balancing the necessary factors and giving due consideration to every allegation in
Plaintiff’s First Amended Complaint, the Court concludes that Defendant’s use of Plaintiff’s
copyrighted Photographs is fair use. Therefore, the Motion (ECF DKT #23) of Defendant The
Rock and Roll Hall of Fame and Museum for Judgment on the Pleadings is granted and Plaintiff
Neil Zlozower’s Complaint is dismissed.
IT IS SO ORDERED.
DATE: 11/10/2025 s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
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