Tabloid publication of stolen photos is not "fair use", says US Appeals Court

Noelia and Jorge Reynoso

A couple of days ago the US 9th Circuit Court of Appeals published its much awaited decision in Monge v Maya Magazines, a case concerning publication by tabloid magazine TVNotas of stolen copyright-protected photographs of the secret wedding of Puerto Rican singer/model Noelia with her manager/producer Jorge Reynoso (the two have apparently got divorced in the meanwhile).

What was at stake was whether unauthorised publication of such photographs could be held tantamount to fair use, as per 17 USC §107. 

Background

Noelia and Reynoso got married in Las Vegas in 2007, but decided to keep their marriage secret, because they valued their privacy, and wanted to preserve the model/singer's image as being young and single. Just a few photos of the ceremony were taken with Noelia's camera, for personal reasons.

Another cover ofTVNotas,
another wedding

In 2008, Reynoso borrowed a SUV from Oscar Viqueira, a paparazzo who also used to work occasionally for the couple as a driver and bodyguard during their stays in Miami. Apparently, Reynoso left the memory chip of Noelia's camera in the car, and Viqueira found it. When Viqueira looked at the files on the chip, he found the photos of the secret wedding and thought it appropriate to capitalise on the files to extort money that apparently Reynoso already owed him. When his plan failed, Viqueira sold the photos to Maya for $1,500, without the permission of the couple. 

TVNotas thus published three photos of the wedding ceremony and three photos of the wedding night. When Reynoso's mother saw them, she called her son berating him for getting married without telling her. 

Noelia and Reynoso decided to sue Maya Magazines and Maya Publishing Group, claiming that they had infringed their copyrights by publishing previously unpublished photos of their clandestine wedding. 

Analysis

The district court granted Maya summary judgment on the ground that publication of the images was fair use, but the Circuit Court reversed. Circuit Judge Margaret McKeown, who delivered the Opinion of the Court (with Judge Milan Smith Jr dissenting), found that that this case read like a "telenovela", but that the tantalising and even newsworthy interest of the photos did not trump a balancing of the four non-exclusive fair use factors. These 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 a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

In any case, the fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Despite the porous nature of these factors, the judge highlighted that, over time, there has been a shift in analytical emphasis in the fair use factors, in large part due to key Supreme Court decisions (in particular Harper & Row and Campbell), which have determined the relative importance of factors (1) and (4).

This said, the judge addressed the four fair use factors in turn.

Even Ignacio was miffed over publication
of those private shots of him in bed ...

Factor #1: Purpose and character of the use

This factor includes three principles that simultaneously complemented and yet were in tension with one another in this case: news reporting, transformation and commercial use.

Although TVNotas's coverage of the wedding qualified as news reporting, this was not sufficient to a finding of fair use, as no general public interest exception exists under US law. Therefore, Maya's coverage had to be assessed in light of the amount of transformation occasioned by its use, as well as the commercial nature of such use.

As to transformation, the judge observed that the photographs had been reproduced essentially in their entirety, and that Maya had neither transformed the photos into a new work nor incorporated them into a broader work: the inherent character of the images had been indeed left unchanged. 

In addition, Maya's use was undisputedly commercial in nature. On account of this and the limited transformation of the images, the first factor was found not to validly support Maya's claim of fair use.

Factor #2: Nature of the copyrighted work

Under the second factor, the Court addressed the extent to which the work at stake was creative and whether it was unpublished.

As to the first aspect, the judge observed that the plaintiffs’ photographs were hardly comparable to those by Richard Avedon, Diane Arbus of Annie Liebotvitz. However, contrary to Maya's contention, they were not entirely factual in nature. 

Moreover, they were unpublished. As established in Harper & Row, the unpublished nature of a work is a key, though not necessarily determinative, factor tending to negate a defence of fair use. The Court agreed and held that Maya's publication supplanted the plaintiffs' right to control the first public appearance of their photographs.

Factor #3: Amount and substantiality of the portion used

As to this factor, the Court held that Maya copied 100% of the plaintiffs' photographs.

Sometimes a non-commercial use defence
may be difficult to invoke successfully

Factor #4: Effect upon the potential market

As was held by the Supreme Court in Harper & Row, this is the single most important element of fair use. Maya had argued, and the district court had agreed, that no potential market for the pictures existed, because the plaintiffs did not intend to have them published. The Court rejected this view and stressed once again the importance of letting the copyright owner control the first publication of his/her work. This was also because fair use focuses on potential, not just actual, market harm.

Conclusion

Having found that none of the four fair use factors could be possibly invoked successfully by Maya, the Court stressed that "[w]aving the news reporting flag is not a get out of jail free card in the copyright arena" and held that no fair use applied in this case.

As commented by The Hollywood Reporter, the decision is a huge victory for celebrities, in that it sets an important precedent. For instance, "Hollywood attorney Marty Singer dealt with the leak of a sex tape involving clients Rebecca Gayheart and [Grey's Anatomy Dr Sloan/]Eric Dane. Because Dane was holding the camera, the lawyer argued, he had a copyright interest in the video. Had a lawsuit against Gawker continued instead of settling, Dane might have been able to enjoy the same kind of victory just given to [Noelia] and Reynoso."

This Kat believes that the conclusion of the Court is sound, as was its interpretation and application of fair use precedents. However, as highlighted in Judge Milan Smith’s dissenting opinion, this outcome may have the potential to “[thwart] the public interests of copyright by allowing newsworthy public figures to control their images in the press.”