is conclusively established on the face of the pleadings with respect to the mat on authorized use of plaintiff photograph of eddie van halen as part of the museum exhibition and titled play it loud which ran what you told through october of tw transform the photo the commercial nature of the exploitation whether the one that acted in bad faith by failing to credit the plane and whether the met impaired the actual market or the photo by failing to license now although the fair use doctrine was codified in section one hundred and seven the defense existed in common law prior to nine hundred and seventy six and according to the supreme court the doctrine remains quote an equitable rule of reason and  so from an equitable standpoint the question is is the more fair that a prestigious museum such as the met compensate in credit the photographer whose work is curated for display in public exhibitions or should the medium enjoyed unfett i ask you to come back to i think how you initially laid out your theme of oral argument which is that there are outstanding factual disputes yes  particular can i focus your attention on the question of the transformative nature of the display of this photograph could you explain to me two things one why in your view this is a factual question and number two what is the authority meaning a case for the proposition that transformative use is a question of fact yes your honor thank you so the the issue  transform of this is actually two pronged it's the it's the purpose and the character now with respect to the purpose and that has argued that they transform the purpose of the photograph because they use it in the context of scholarship in a museum exhibition whereas it was originally intended to you know as a rock and roll d photo was not intended to be in a museum and to that extent they're correct they have somewhat transformed the issue however that doesn't end the analysis you still have to ask have they alter the meaning or expression behind the photograph itself so there's at least four cases i can cite where on rule twelve where the court determined that it was not sufficiently transform determine as a matter of law the one case coleman versus age you know aside in our brief talks about the use of a painting in a documentary film about a crime saga and judge brody said at the at the rule twelve stage it is plausible that the fence used to work in created a question of fact and here what we're saying is the object of the scholarship of this exhibition is not the photograph the object of the exhibition is that it's hard so what are they really done to transform the picture and i think your plan has even said this at one point the purpose of the picture was to capture van halen concert which is very different from showing the guitar itself being operated by bit him i mean it's that the purpose of the exhibition purpose of the photograph differs from purpose of the of the photograph being used in the in the exhibition would you agree that we agree to the extent that they have transformed the purpose by putting it into the national examiner which involved a secondary use of a photograph of a vintage cadillac in that case judge martin's days back in ninety eight found that the use was not transformative because they were using the photo to show what it  article is about art cars not photography and the examiner was simply using this of oils photo to save itself the expense of painting it's own photo so the point that we're making here is that because the commentary and the scholarship as it were is not specifically the rackets of the photograph exhibit beads of the complaint shows that there is it there is no information whatsoever about the photograph at all they have not staged the exhibition with the idea of educating the public about the copyrighted work at issue rather they're using the photograph as a reference point and what we're saying is ok well that might be somewhat transformative but is it so transformative as a matter of law that no reasonable jury can conclude that this was that this was actually used as an illustrative device to basically place things into context as a reference point rather than in serving as the object of scholarship i also wanted to address could only have thirty seconds but you know the idea of this not being a commercial venture i mean the the that started charging mandatory admission back in two thousand and eighteen and they generated according to public record somewhere on the on the about fifty five million dollars at the box office that year i don't think that this case should be compared to cases that involve for example public universities i'm saying to they charge for access to the website that they did not charge access to the website however and that was your complaint alleged website but the website is using the photograph in some sense as a commercial advertising for the physical exhibition because they are inviting the web user to come to the website view the you know the photograph and  at the very least a plausible inference of currency out again this is a little while we only need to establish plausibility of the rd some fact there actually mr mr freeman if i could pause you right there you've reserved two minutes for rebuttal we've already kept a little bit and we won't count any that words are two minutes now if you'd like you may use some of your two minutes now or you may hold them in reserve what your pleasure i prefer to hold them in reserve your honor thank you ok we'll come back to you thank you very much mr freeman now we sure me please record my name is linda stein and i'm representing the metropolitan museum of art your honors this is actually a classic transformative used very similar to the use case similar to the photograph or poster or some other copyrighted work was used as a historical artifact in this case mr morano explicitly emitted in his papers below that his for the purpose of the original photograph was to depict van halen in concert it was a classic celebrity photograph of a musician in concert in sharp contrast it is evident on the face of the online exhibition catalogue that the metropolitan museum is using the photograph as a historical artifact as a demonstration of the guitar in action and then they provide a great deal of of of commentary about the guitar they talk about how it was constructed how it was that the end helen was a very innovative musician and this was a very innovative tarr it combines elements of various other guitars it became a famous guitar fashion as an artifact of what actually occurred you know in a very similar fashion as the de case case we don't need discovery here it's evident as i said below mr prado explicitly  admitted what the purpose of his photographs is and the metropolitan museum is online exhibition catalogue it's very obvious on the face of that catalog what the museum was doing and so this is a case that is perfectly  photograph cases and in the those cases they emphasize again and again that the reason why those cases do not find fair use is because the photograph was being used for the exact same purpose as the original they were news photographs they were being used in news websites or newspapers to write stories about a newsworthy purpose that they were being used for the exact same as the original they were being used in a commercial fashion and of course in those all of those cases it makes perfect sense that the court would find that's not fair use the court would find that if you allow that type of thing  news journalist couldn't earn a living but those cases even those cases make clear that although versus hearst is a perfect example cited by mr morano those cases say to be clear commentary is not necessary to the fair use defense only that the secondary use provide new expression meaning or message to the original and that's exactly has happened here the met has in fact provided a new message meaning you know to the original by focusing on the guitar  yes well you know both of the k k it's in the u k case there was also in several instances no commentary on the posters being used in the autobiography of the grateful dead and the nd circuit says it does not need to be commentary about the artistic you know poster as long as the poster here is serving a different purpose it is true showing that this concert happen and the cases say in order for work to be a commercial work has to be very direct connected you have to be trying to profit from the sale of that work best to be a very close connection between you know the the use and the money if you will the charge hypothetical notion that some people who go online and see something for free might in going to see the exhibition is far too tenuous a connection for a work the commercial again another perfect example is the th circuit decision in the in the room and the baltimore ravens case they had an exhibition in the lobby about the history of the baltimore ravens i'm sure you know in a in a general sense that was to promote the ravens but the core before circuits and that was not a commercial use anybody could walk into the lobby and see the exhibition it was not there was no charge to see the which is in your view determining something is a factual question so i understand that sort of facts here are not contested you know where did that go to work here on which web site all that sort of thing but i think it was in council suggests that the questions of purpose and transformative ness are also questions of fact what's your view on that i don't believe in this exhibition catalogue is completely obvious on its face only in stinson which mr morano has tried to raise a factual issue is he as alleged that by mistakenly not having a photo credit to him to the photographer that that was a bad fate i have two things to say about that st of all that argument was waived it was never raised in the complaint  held that bad faith really only come into the fair use context when you have the fact that the nation has when a man when and when a work has been her loins and there's an attempt to scoop and the nexium case and the swatch case both the concert the cases make very clear that other than in that context good or bad faith is not a significant factor at all in the analysis some cases where you know the the you might need to have a factual discovery but not in this case again because mr morongo has explicitly admitted the purpose of the  his purpose which was to take a concert out of inhalant and all you need to do is look at the metropolitan museum is online exhibition catalogue and their purpose in using it is is evident as though there's no enquiry needed it's very plain on the face of death that this was you know the text is bare and one hundred and eighty five other objects of error in the introduction to the catalogue everything is clear on the face of the document and it's important frankly that motions to dismiss be granted the purpose of the copyright act ultimately is to advance science and the art and there's a tremendous chilling effect if cases like this are dismissed from the start discovery is enormously expensive and there is a significant chilling effect museums and book publishers and others if if cases and fifty five they used the photograph quote to inform the public that the actual frankenstein guitar was available for viewing in the museum as part of the exhibition and quote that exhibition is not your honors with respect to the bill graham's archive case which the district court relied on that case for us was not a museum case number two in that case frost of it was not that they were using the images as historical artifacts rather it was that they were using the house as kind he thumbnail images that didn't take up more than th of the page they were in a collage format there was a static alteration in other words the photo and the image constituted in consequential portion here exhibit beads of the complaint which is what should be the controlling exhibit shows quite clearly that the photograph is used in full scale it's full color it's not a thumbnail it's not a collage it's a literal wholesale reproduction more over there is actually a federal case involving the museum and we've said that in our brief it's called rothenberg verse the museum of fine arts houston that was a rule twelve the museum of fine arts houston filed a rule twelve motion on the exact same grounds that i mean that here and in that case the district court southern district of texas does not i had the rule motion and said that he wanted a developed factual record particularly with respect to the  factor which is the market harm that was caused and what ended up happening was the district court ordered the parties to submit letters regarding what would be disco up of discovery and ultimately the district court approved discovery with respect to the policies and practices of the museum for licensing photographic content and also to see were they licensing other photographs for purposes on line so we respectfully submit that although that case is not binding at the very least a matter of the i mean a lot to uncontested fact so there is no waiver there is bad faith here there was no credit whatsoever given to the photographer which is i mean considering this is a museum which is the whole point they're saying is for scholarship the fact that they didn't even inform know use a photograph or incidental purposes the whole purpose of fair use is to preserve the st amendment right to communicate a message if they're just using the photo as an incidental use that doesn't seem to fall in line with the