Does using a cropped copyrighted photo—without permission from the photographer—to promote a museum exhibition online fall under fair use? Yes, according to a New York Second Circuit court three-panel judge’s recent decision. Last week, the panel sided with the Metropolitan Museum of Art after photographer Lawrence Marano sued the museum for using one of his photos online to promote an exhibition.

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The photo in question is an image of Van Halen that Marano shot in 1982. In 2019, the Met used the photo as part of an online exhibition catalog to show the musician’s guitar. The exhibit—”Play It Loud: Instruments of Rock and Roll”—showcased famous and iconic guitars and other rock instruments. The image was cropped to focus on the guitar and appeared along other photos of the guitar, with text discussing the instrument’s importance.

The photographer says he never gave the museum permission to use the photo and sued the Met that same year. A judge in 2020 sided with the Met. Marano appealed, but the latest ruling again came back in the museum’s favor.

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Last Friday’s ruling said that the Met’s use of the image falls under fair use. The panel said that the work was transformative because the Met and the photographer had two different intentions. “Whereas Marano’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 Frankenstein guitar and its significance in the development of rock n’ roll instruments,” a summary from last week’s decision reads.

Marano had argued that the museum charged admission to the exhibition that his photo promoted. The judges, however said that the website is free and that use of the photo falls under the category of free use law allowing images to be used that “promote the progress of Science and useful Arts.” That distinction could be important, and begs the question if the photograph was used in the actual exhibition instead of the online catalogue, would the courts have decided differently?

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According to the case summary, Marano had similar thoughts during the case. “Marano protests that this holding would extinguish copyright protections for photographers because museums displaying copyrighted photographs will always able to assert a fair use defense by claiming a scholarly, transformative purpose behind the exhibition,” the case summary reads. But, the judges said that the ruling was “case specific” and that using the photo in a different way could have reversed the decision.

The three judges —John M. Walker Jr., William J. Nardini and John L. Sinatra Jr. —also said that the use of the photo for the museum didn’t decrease the photos value or affect the photographer’s ability to continue to market the photograph.

“The Metropolitan Museum of Art values the contributions of all artists, including photographers, and also appreciates that fair use is a key tool for the visual arts community,” Linda Steinman, an attorney representing the Met said in a statement about the case. “The mission of the Met and all museums is to provide the public with access to art—and this important decision protects, indeed strengthens, this important societal role.”