On August 14, 2012, the majority of the Ninth Circuit Court of Appeals, in Monge v. Maya Magazines, Inc., Nos. 10-56710, 11-55483 (9th Cir. 2012), reversed the decision of the District Court for the Central District of California and held that a tabloid’s publication of copyrighted photographs without permission was not a fair use under copyright law, rejecting a general newsworthy exception.
In 2007, Noelia Lorenzo Monge, a Puerto Rican pop singer and model, secretly wed Jorge Reynoso, her manager, at “The Little White Wedding Chapel” in Las Vegas. The couple restricted public access at the wedding and allowed only six wedding pictures to be taken, three at the wedding and three after the wedding, all with the couple’s own camera. The secret was safe for two years until the wedding photographs were illicitly published by Maya Magazine in “TVNotas”, its Spanish-language celebrity gossip magazine. The magazine obtained the photographs from the couple’s bodyguard and driver, Oscar Viqueira, who had found a memory chip containing the photos in Reynoso’s car. When Reynoso refused to pay money allegedly owed to the driver, the driver sold the pictures to the magazine for $1500.
The couple sued the magazine for copyright infringement, and the magazine countered with a fair use argument, claiming the photographs were used as “news reporting”, one of the purposes listed in the preamble to the fair use section of the copyright act. The district court agreed with this argument and found in favor of the magazine. On appeal, the 9th Circuit reversed, finding that the use of photographs in connection with “news reporting [ ] is not a get-out-of-jail free card in the copyright arena”, but requires a full consideration of the standard fair use factors to determine if the defense should apply in each instance.
Factor 1: Purpose and Character of the Use:
The 9th Circuit focused extensively on the first fair use factor and found that it favored the copyright owner. While the gossip magazine’s coverage of the celebrity wedding was deemed to be “news reporting,” the court determined that there are boundaries to this exception and that the news media does not get a free ride to use copyrighted works merely because they report on newsworthy events. The court also looked at whether the magazine’s use of the couple’s wedding photographs “transformed” them, or altered their purpose and character in a way that did not merely supplant the photographs
themselves. As these works were not cropped or creatively altered, the magazine argued that its purpose in using the photographs was transformative, as an exposé of a clandestine wedding night serves a different purpose than personally documenting a wedding event. However, the court rejected this broad interpretation of “transformative,” noting that it would create a blanket newsworthy exception in the fair use context, eviscerating the licensing rights of copyright owners who shoot editorial images. The court also found that the magazine’s use of the photographs was “undisputedly commercial” in nature, which weighs against a finding of fair use.
Factor 2: Nature of the Copyrighted Work:
The 9th Circuit also found that the second factor weighed against a finding of fair use. Although the wedding photographs were not highly artistic (they were point-and-shoot images), the court disagreed that
they were merely factual recitations of the nuptial events they documented. Importantly, the court also determined that the photographs’ status as unpublished works strongly weighed against a finding of fair use because the magazine’s publication of the photographs supplanted the couple’s right to control the first public dissemination of the photographs.
Factor 3: Amount and Substantiality of the Portion Used:
The third factor also weighed against fair use. The magazine used one hundred percent of the wedding photographs made available to them in their publication, including the “heart” of each photograph. Furthermore, the court determined that the magazine could have effectively and reliably reported on the couple’s wedding without the use of the photographs by publishing the couple’s publically available marriage certificate.
Factor 4: Effect Upon the Potential Market:
The final factor weighed against a finding of fair use as well. That the couple did not intend to sell the publication rights to their wedding photographs at the time of the lawsuit did not mean that a market did
not exist for the photographs if the couple later changed their minds and decided to sell. In fact, the magazine purchased the photographs for $1,500 from Viqueira, proving the existence of a market, and the couple had previously sold photographs of themselves to the magazine. Finally, the court noted that the potential market for the photographs dropped significantly once they were published by the magazine.
Whereas the majority of the 9th Circuit found against the magazine on all of the fair use factors (relying on Supreme Court fair use cases for guidance and criticizing the dissent for not looking at each photograph as an individual work), the dissent expressed concerns that the majority’s opinion would thwart a free press by allowing celebrities to have extensive control over the use of their images to prevent embarrassing or incriminating photographs of themselves from being released.
This decision is important in affirming that a photograph depicting a newsworthy event cannot be published without permission under fair use by merely depicting an event that is “newsworthy”. Fair use is more nuanced, and there is a difference between the rare instance when a photograph itself is the news (which may provide a viable fair use defense) and instances in which the use of a photograph merely illustrates the news (which may not qualify as fair use).