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July 25, 2014

Gossip Mag’s “Fair Use” Claim in Publishing a Celebrity’s Wedding Photos Rejected

The U. S. Court of Appeals for the Ninth Circuit reversed the district court’s grant of summary judgment in favor of Maya Magazines and Maya Publishing Group (collectively Maya), finding that the media company did not meet its burden of establishing that its publication of previously unpublished photos of a celebrity couple’s wedding constituted fair use. Monge  v. Maya Magazines, Case Nos. 10-56710, 11-55483 (9th Cir., Aug. 14, 2012) (McKeown, J.) (Smith, J., dissenting).

Latin American celebrities, Noelia Lorenzo Monge and Jorge Reynoso (the couple), filed an action against Maya in the district court for copyright infringement and misappropriation of likeness based on Maya’s publication of previously unpublished photographs of the couple’s 2007 secret Las Vegas wedding in the Spanish-language celebrity gossip magazine TVNotas.

Maya purchased the six wedding photos at issue from a paparazzo, who was also an occasional driver for the couple. The paparazzo had previously tried to “sell” the photos to the couple to relieve a debt he owed to one of them. The photos were on a memory chip containing hundreds of photos of the couple that were unrelated to the nuptials.  In addition to publishing one of the wedding photos on the cover of TVNotas, Maya also published a two-page spread within the magazine showing all six wedding photos interspersed with captions. Due to the privacy of the wedding (to protect Monge’s image as a single pop star), the six photos were the only published images of the nuptials.

Because federal registration of a copyright is required before bringing an infringement action, after learning of Maya’s publication of the photographs, the couple registered copyrights in five of the images. The couple’s lawsuit was filed shortly thereafter.

The district court dismissed the misappropriation of likeness claims and granted Maya’s motion for summary judgment based on its affirmative defense of fair use of the copyrighted photographs. On appeal, the sole issue was whether the district court properly granted summary judgment based on the fair use doctrine. Accordingly, the court analyzed the four fair use factors under copyright law, finding that none of them topped in favor of Maya.

1.  The Purpose and Character of the Use of the Copyrighted Work

Although it agreed that the wedding photos were newsworthy, the 9th Circuit reaffirmed that news reporting alone is not “sufficient itself to sustain a per se finding of fair use.” Thus, the commercial nature of the use of the photographs was determined to weigh against a finding of fair use. The Court also found that the reproduction of the photos as a two-page montage with captions was not a sufficient transformation of the original works to allow Maya to properly claim fair use.

2.  The Nature of the Copyrighted Work

The 9th Circuit explained that photographs—even those that are not highly artistic in nature—are entitled to copyright protection.  Even though the unpublished status of a work does not bar a finding of fair use, the court cited Harper & Row v. Nation Enters., stating that the couple’s right to control the first public appearance of its copyrighted photographs outweighed Maya’s claim of fair use.

3.  The Amount and Substantiality of the Portion Used in Relation to the Work as a Whole

With respect to the third fair use factor, the 9th Circuit noted that the only existing photos of the couple’s wedding and wedding night were used in the magazine, and that Maya’s minimal cropping of the photos meant that the “heart” of each copyrighted photograph was published. Because “Maya used far more than was necessary to corroborate its story,” this factor also weighed in favor of the couple.

4.  The Effect Upon the Potential Market for the Copyrighted Work

Finally, the court found that Maya’s unauthorized publication of the photos “substantially harmed” and “completely usurped” the couple’s potential market for the photos.  The court disagreed with the district court’s claim that there was no potential market for the photographs because the couple did not intend to sell their publication rights in the images.

Instead, the court explained that the potential market for the photos existed independently of the couple’s intent to market the photos. Specifically, the court focused on the fact that the couple was in the business of selling images of themselves and that Maya had previously paid Monge to pose for one of its publications and had also paid Reynoso for pictures of his prior marriage.  Therefore, the court determined that Maya’s purchase of the photos from the paparazzo confirmed the potential market for the photographs.

The Dissent

The dissent argued that the decision of the panel majority was inconsistent with Supreme Court precedent and undermined the fair use doctrine and free press. In particular, the dissent stated that it would have affirmed the district court’s ruling with respect to at least three of the photographs that “directly proved” the couple’s marriage. The dissent also noted that the nearly 400 photos on the memory chip (which were unrelated to the couple’s wedding) constituted a “compilation” and that Maya’s use of only five of those 400 photos was not a substantial portion of the work in relation to the whole.

© 2014 McDermott Will & Emery

About the Author

Sarah Bro, McDermott Will Emery Law Firm, Intellectual Property Attorney
Associate

Sarah Bro is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Orange County office.Sarah focuses her practice on trademark prosecution and trademark litigation support.

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