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Ninth Circuit holds that Spanish-language gossip magazine’s unauthorized publication of plaintiffs’ secret wedding photographs did not constitute fair use.
Plaintiffs, Latin American celebrities Noelia Lorenzo Monge and Jorge Reynoso, married in a secret ceremony in Las Vegas in January 2007. The couple took photographs of the wedding ceremony and the wedding night. In February 2009, defendant Maya Magazines, Inc., a Spanish-language celebrity gossip magazine, obtained from plaintiffs’ driver a disk containing 400 of plaintiffs’ photographs, including six photographs of the wedding and wedding night. Maya published those six wedding photographs in an issue of one of its magazines, TVNotas.
Following publication of the photographs, plaintiffs registered copyrights in the photographs and sued Maya for copyright infringement as well as statutory and common law misappropriation of likeness. The district court dismissed the misappropriation of likeness claims and granted summary judgment in Maya’s favor on the copyright infringement claim, finding that Maya’s publication of the photographs was a fair use under the Copyright Act. Plaintiffs appealed the district court’s finding of fair use.
On appeal, the Ninth Circuit reversed, finding that Maya’s publication of the photographs did not constitute fair use. The Copyright Act directs courts to consider four nonexclusive factors in determining fair use: (1) the purpose and character of the use, (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 on the potential market for or value of the copyrighted work.
Maya argued that the purpose and character of its publication supported a finding of fair use, because its use of the photographs was both newsworthy and transformative, in that Maya used the photographs for an “exposé” of plaintiffs’ clandestine wedding. The court disagreed, finding that newsworthiness alone does not require a finding of fair use and that Maya added nothing new to the character, meaning, purpose, or message of the photographs. Although reprinting controversial photographs as part of an exposé may be transformative, Maya was not publishing controversial photographs but rather using the photos to report plaintiffs’ clandestine wedding. According to the court, the pictures were not the controversy, and the controversy surrounding the wedding—that the couple had secretly married and kept the secret for two years—had little to do with the pictures and could have been reported using other means, including the marriage certificate, which was a public record (and which Maya did not include in its story). Maya did not transform the photos into a new work or incorporate the photos as part of a broader work, because the entirety of the “article” was the six photographs with a few added headlines and captions, and the publication left the inherent character of the images as wedding photos unchanged. The court also found that, being a gossip magazine, Maya’s purpose in using the pictures was undisputedly commercial, militating against a finding of fair use Acknowledging the newsworthiness of Maya’s reporting on plaintiffs’ clandestine wedding, the court concluded that, at best, the purpose and character of Maya’s publication were a neutral factor and did not support its claim of fair use.
The court found that the remaining factors also militated against fair use. In determining the nature of the works, the court found that while plaintiffs’ photographs were only marginally creative, they were previously unpublished, and plaintiffs’ right to control their first publication outweighed Maya’s claim of fair use. Maya had also used the entirety of plaintiffs’ copyrighted works—all the photographs of the wedding and almost all the photographs of the wedding night, and with minimal change to the photos themselves. Noting that Maya could have broken the story with other documentation instead of the couple’s pictures and that, even absent official documentation of the marriage, only one photo of the couple in their wedding garb would have sufficed to tell the story, Maya used far more of the copyrighted works than was necessary. Finally, Maya’s use of the photographs undermined the market for plaintiffs’ photographs. Noting “little doubt” about the existence of an actual market for these wedding photos, because the plaintiffs were in the business of marketing images of themselves and, in fact, Maya had paid them for photographs in the past, the court found that “the bottom literally dropped out of the market—neither Maya nor anybody else is likely to purchase these pictures from the couple” after Maya’s first, exclusive publication. After considering the four factors separately, the Ninth Circuit “put them in the judicial blender to find the appropriate balance” and concluded: “Without a single factor tipping in its favor, Maya has not met its burden [to establish fair use]. Because Maya’s affirmative defense of fair use fails as a matter of law, the district court erred by granting summary judgment in favor of Maya on the basis of fair use. Instead, the district court should have granted the couple’s summary judgment motion on this issue.”