Fair Use Fracas Over Publication of Photos of Secret Celebrity Nuptials

Noelia Lorenzo Monge, a pop singer and model, and Jorge Reynoso, her manager and a music producer, are apparently Latin American celebrities who were secretly married in Las Vegas in 2007.  At their wedding, employees of the chapel, using Monge's camera, took three photos of the wedding, and three more photos were taken of the couple on the wedding night.  The photos were apparently intended to be only for the couple's private use.

They managed to keep their wedding a secret--even from their families--for two years but in 2009, a paparazzo who occasionally worked as a bodyguard and driver for the couple, took a memory chip containing the wedding photos along with other photos and videos and sold it to Maya Magazines, which publishes "TVNotas," a Spanish-language celebrity gossip magazine.  Maya then published six of the secret wedding photos, three from the ceremony and three from the wedding night.

After the pictures were published, the couple registered copyrights in five of the six photos published and then sued Maya alleging copyright infringement and misappropriation of likeness under California law.  The district court dismissed the two misappropriation of likeness claims on a motion to dismiss, concluding that the photos fell within the public affair and public interest exceptions to the prohibition against using another's likeness for advertising purposes without the person's prior consent.

The parties filed cross-motions for summary judgment and the district court granted Maya's motion, concluding that its publication of the photos constituted fair use under Section 107 of the Copyright Act.

In an opinion that included spirit exchanges between the majority and the dissent the Ninth Circuit reversed the district court on the fair use issue.

The majority opinion started with a brief history of the fair use defense and the relevant factors, describing them in a way that did not bode well for Maya and noting that the Supreme Court had not given "a fair use free pass to news reporting on public figures," a sentiment that would be repeated a number of times in the opinion.

Stating that news reporting was "not sufficient itself to sustain a per se finding of fair use," the majority opinion dove into an analysis of the fair use factors.

As to the question of the degree to which Maya's use of the photos was transformative, the majority concluded that the photos were published essentially in their entirety and that "neither minor cropping nor the inclusion of headlines or captions transformed the copyrighted works."  The majority also rejected the proposition that the photos' newsworthiness lead to transformation.  Nor did a difference in purpose between the couple's creation of the photos (to document their wedding) and Maya's publication of the photos (exposing the couple's secret wedding) constitute transformation for purposes of fair use.  Thus, ultimately, the majority concluded that "Maya's use--wholesale copying sprinkled with written commentary--was at best minimally transformative."

The majority also had no difficulty concluding that Maya's use of the photos was commercial in nature, again repeating that "newsworthiness, by itself, is insufficient to demonstrate fair use."

As to the nature of the copyrighted works at issue--the wedding photos--although they "were not highly artistic" the majority emphasized the unpublished nature of the photos before Maya's publication, concluding that this factor outweighed the claim of fair use.

As to the amount and substantiality of the portion used, the majority concluded that this factor weighed "decisively" against fair use because both quantitatively and qualitatively, "every single photo of the wedding and almost every photo of the wedding night were published" and the minimal cropping of the photos demonstrated that the "heart" of each copyrighted work was published.

And as to the final factor--the effect upon the potential market--the majority opinion again concluded that it did not weigh in favor of fair use, re-emphasizing the importance of the previously unpublished nature of the photos and the copyright owner's right to control first publication.  The majority also rejected the district court's conclusion that no potential market for the photos existed because the couple did not intend to sell publication rights stating that the "potential market for the photos exists independent of the couple's present intent."

Thus, the majority concluded that on balance the factors did not favor a finding of fair use as no factor tipped in Maya's favor.  The majority opinion concluded by referencing yet again the proposition that "[w]aving the news reporting flag is not a get out of jail free card in the copyright arena" and that "Maya's effort to document its expose does not automatically trump the couple's rights in its unpublished photos."

Circuit Judge Smith wrote a spirited dissent that saw troublesome implications in the majority's opinion:

The majority's fair use analysis . . . thwarts the public interests of copyright by allowing newsworthy public figures to control their images in the press. . . .  Under the majority's analysis, public figures could invoke copyright protection to prevent the media's disclosure of any embarrassing or incriminating works by claiming that such images were intended only for private use.  The implications of this analysis undermine the free press and eviscerate the principles upon which copyright was founded.  Although newsworthiness alone is insufficient to invoke fair use, public figures should not be able to hide behind the cloak of copyright to prevent the news media from exposing their fallacies.

The case cite is Monge v. Maya Magazines, Inc., Nos. 10-56710, 11-55483 (9th Cir. Aug. 14, 2012).

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