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IP/Entertainment Case Law Updates

Monge v. Maya Magazines, Inc.

Court holds that defendants’ publication in their Latin American celebrity-interest magazine of photographs from the wedding night of two celebrities who denied and concealed their marriage is a fair use and grants summary judgment in defendants’ favor.

The district court granted the defendants’ motion for summary judgment in this copyright infringement suit brought by international pop star Noelia Lorenzo Monge and music producer Jorge Reynoso against the publishers of TVNotas, a weekly magazine focusing on newsworthy Latin American personalities and featuring articles on popular celebrities.

The plaintiffs married secretly in Las Vegas in January 2007, but photographs were taken of the couple throughout their wedding night. In February of 2009, the defendants published five photographs from that night in TVNotas. Thereafter, the plaintiffs sued for copyright infringement, among other claims.

Following the dismissal of the other claims, the defendants moved for summary judgment on their fair use affirmative defense to the copyright infringement claim. The four factors considered in determining fair use are: (1) the purpose and character of the use, including whether such use is of a commercial or nonprofit nature; (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. Applying these factors, the court found that the defendants’ publication of the photographs was fair use.

The first factor – purpose and character of use – weighed in favor of the defendants because the photographs were not used in their original context of commemorating the wedding night. The defendants published the photographs to confirm the plaintiffs’ nuptials and to challenge the plaintiffs’ repeated public denials of their marriage. Because the purposes of publication were distinct from the objects of the original creation, the court found the uses to be transformative and not “supersed[ing] the objects of the original creation.” Moreover, because transformative use outweighs the commercial nature of the publication, the first factor supported fair use.

The second factor – nature of the work – was neutral. The court found that the photographs were essentially factual documentations of the events of that night. The court reasoned that the photographs are fact-based works in this case because certain of the photographs were taken by wedding chapel employees rather than professional photographers. Even assuming that the photographs were creative works, the court stated this would only weigh slightly in the plaintiffs’ favor because “this factor is of little significance in cases where the use was transformative.”

The third factor – the amount and substantiality of the work used by the defendants – was also neutral. The defendants published largely the entirety of the five photographs at issue, but they only published five photographs out of the four hundred that they purchased. The court found that the defendants published the photographs only to the extent necessary to corroborate the magazine’s contention that the plaintiffs were in fact married.

The fourth factor – effect of defendants’ use upon the potential market for the work – weighed in favor of fair use. The court found that there was no market for the photographs because the plaintiffs never intended to market the photographs themselves in light of their effort to conceal their marriage and their stated intention of maintaining the secrecy of their marriage. In fact, plaintiff Reynoso’s own mother was unaware that the two had married. Thus, the publication of these photographs did not usurp or substantially impact the potential market for those photographs because no such market existed.