No Fair Use in Mag's Publication of Marriage Photos of Singer

To Ninth Circuit Judge M. Margaret McKeown, the appeal in copyright case Monge v. Maya Magazines, 10-56710 (opinion available at http://bit.ly/SHWuIB), read “like a telenovela, a Spanish soap opera.” McKeown wrote in Monge that the Spanish-language gossip magazine TVNotas violated the copyright of Noelia Lorenzo Monge, a Puerto Rican pop singer known mostly by her first name, and her husband, Jorge Reynoso, a music producer, by publishing private wedding photographs that apparently had been stolen from them.

The magazine argued that publishing the photos met the copyright fair-use exception, in part because the photos had genuine news value: The couple had married in secret and publicly denied their marriage. McKeown disagreed. “Waving the news-reporting flag is not a get-out-of-jail-free card in the copyright arena,” she wrote.

But Judge Milan Smith Jr. dissented, saying that under McKeown's logic, golfer Tiger Woods could have blocked publication of his “sexts” by asserting copyright protection and former congressman Anthony Weiner could have shut down publication of his sexually suggestive Twitter photos. “Although newsworthiness alone is insufficient to invoke fair use,” Smith wrote, “public figures should not be able to hide behind the cloak of copyright to prevent the news media from exposing their fallacies.”

Bobby Ghajar, an intellectual property partner at Pillsbury Winthrop Shaw Pittman in Los Angeles, says the ruling is “a cautionary tale that the news value defense is not an absolute defense, particularly when the copyrighted work is unpublished.”

Andrew Bridges, an IP litigator at Fenwick & West, says he thought Smith had the better argument, and that the case was really more about a stolen trade secret than an infringed copyright.

Monge and Reynoso married in Las Vegas in 2007, but kept it a secret to preserve Monge's image as a youthful, single celebrity. Only three pictures were taken at the wedding, plus three more in their “nuptial garb” on their wedding night, including one of Monge lying on a bed with her underwear exposed.

About two years later, the couple's driver found or stole a memory chip that contained the photos and sold them to Maya Magazines, which published the six photos without permission in its publication TVNotas. The cover of the magazine announced (in Spanish): “The secret wedding of Noelia and Jorge Reynoso in Las Vegas. We even have photos of their first night as a married couple!”

Fair Use Factors

After reciting the melodramatic facts of the case, McKeown undertook a “long journey through the nooks and crannies of fair use law,” weighing the four factors courts use to determine whether a fair use exception applies.

McKeown began by noting that the factors have been described as “billowing white goo” by one academic. But she said the 1985 Supreme Court case, Harper & Row v. Nation Enterprises, 417 U.S. 539 (http://bit.ly/RgcZ8U), was “particularly instructive” because it involved The Nation magazine's unauthorized publication of verbatim excerpts from ex-President Gerald Ford's upcoming memoir. The Supreme Court held that despite the public interest in Ford's thoughts about pardoning Richard Nixon, the excerpting was not a fair use. “In other words, the court did not give a fair use free pass to news reporting on public figures,” McKeown wrote.

And if TVNotas only wanted to break the news of the couple's wedding, McKeown added, it could simply have dug up the couple's marriage certificate, a public record. Further, she continued, the headlines and layout only “marginally transformed” the photos, cutting against fair use. Although the photos were not highly artistic, they were unpublished, again cutting against fair use. The magazine published all six of the photos and with that publication, “the bottom literally dropped out of the market” ' neither Maya nor anybody else is likely to buy the photos now.

“Following the statute, we consider each of the four factors and put them in the judicial blender to find the appropriate balance,” McKeown wrote. “Without a single factor tipping in its favor, Maya has not met its burden.”

McKeown's opinion not only reversed summary judgment for Maya, it directed entry of summary judgment for Monge and Reynoso. U.S. District Judge Rudi Brewster of San Diego, sitting by designation, concurred.

Dissent

In dissent, Judge Smith said the article was more than “a haphazard republication of the couple's photos.” Smith noted: “Framed around the couple's refusals to confirm their marriage and to continue to represent Noelia as an 'unwed sex symbol,' Maya used the images as documentary evidence. We, as well as our sister circuits, have held that a photo montage, with accompanying commentary, may constitute a transformative use.”

Smith distinguished Harper & Row by saying the Ford excerpts were about to be published elsewhere, other magazines had paid for the rights to them, and Ford had never denied the facts at issue in the excerpts. “The majority's proposed test in [Monge] would effectively vest in the courts the power to circumscribe news stories and the sources upon which the media may rely,” Smith wrote.

To Ninth Circuit Judge M. Margaret McKeown, the appeal in copyright case Monge v. Maya Magazines, 10-56710 (opinion available at http://bit.ly/SHWuIB), read “like a telenovela, a Spanish soap opera.” McKeown wrote in Monge that the Spanish-language gossip magazine TVNotas violated the copyright of Noelia Lorenzo Monge, a Puerto Rican pop singer known mostly by her first name, and her husband, Jorge Reynoso, a music producer, by publishing private wedding photographs that apparently had been stolen from them.

The magazine argued that publishing the photos met the copyright fair-use exception, in part because the photos had genuine news value: The couple had married in secret and publicly denied their marriage. McKeown disagreed. “Waving the news-reporting flag is not a get-out-of-jail-free card in the copyright arena,” she wrote.

But Judge Milan Smith Jr. dissented, saying that under McKeown's logic, golfer Tiger Woods could have blocked publication of his “sexts” by asserting copyright protection and former congressman Anthony Weiner could have shut down publication of his sexually suggestive Twitter photos. “Although newsworthiness alone is insufficient to invoke fair use,” Smith wrote, “public figures should not be able to hide behind the cloak of copyright to prevent the news media from exposing their fallacies.”

Bobby Ghajar, an intellectual property partner at Pillsbury Winthrop Shaw Pittman in Los Angeles, says the ruling is “a cautionary tale that the news value defense is not an absolute defense, particularly when the copyrighted work is unpublished.”

Andrew Bridges, an IP litigator at Fenwick & West, says he thought Smith had the better argument, and that the case was really more about a stolen trade secret than an infringed copyright.

Monge and Reynoso married in Las Vegas in 2007, but kept it a secret to preserve Monge's image as a youthful, single celebrity. Only three pictures were taken at the wedding, plus three more in their “nuptial garb” on their wedding night, including one of Monge lying on a bed with her underwear exposed.

About two years later, the couple's driver found or stole a memory chip that contained the photos and sold them to Maya Magazines, which published the six photos without permission in its publication TVNotas. The cover of the magazine announced (in Spanish): “The secret wedding of Noelia and Jorge Reynoso in Las Vegas. We even have photos of their first night as a married couple!”

Fair Use Factors

After reciting the melodramatic facts of the case, McKeown undertook a “long journey through the nooks and crannies of fair use law,” weighing the four factors courts use to determine whether a fair use exception applies.

McKeown began by noting that the factors have been described as “billowing white goo” by one academic. But she said the 1985 Supreme Court case, Harper & Row v. Nation Enterprises , 417 U.S. 539 ( http://bit.ly/RgcZ8U ), was “particularly instructive” because it involved The Nation magazine's unauthorized publication of verbatim excerpts from ex-President Gerald Ford's upcoming memoir. The Supreme Court held that despite the public interest in Ford's thoughts about pardoning Richard Nixon, the excerpting was not a fair use. “In other words, the court did not give a fair use free pass to news reporting on public figures,” McKeown wrote.

And if TVNotas only wanted to break the news of the couple's wedding, McKeown added, it could simply have dug up the couple's marriage certificate, a public record. Further, she continued, the headlines and layout only “marginally transformed” the photos, cutting against fair use. Although the photos were not highly artistic, they were unpublished, again cutting against fair use. The magazine published all six of the photos and with that publication, “the bottom literally dropped out of the market” ' neither Maya nor anybody else is likely to buy the photos now.

“Following the statute, we consider each of the four factors and put them in the judicial blender to find the appropriate balance,” McKeown wrote. “Without a single factor tipping in its favor, Maya has not met its burden.”

McKeown's opinion not only reversed summary judgment for Maya, it directed entry of summary judgment for Monge and Reynoso. U.S. District Judge Rudi Brewster of San Diego, sitting by designation, concurred.

Dissent

In dissent, Judge Smith said the article was more than “a haphazard republication of the couple's photos.” Smith noted: “Framed around the couple's refusals to confirm their marriage and to continue to represent Noelia as an 'unwed sex symbol,' Maya used the images as documentary evidence. We, as well as our sister circuits, have held that a photo montage, with accompanying commentary, may constitute a transformative use.”

Smith distinguished Harper & Row by saying the Ford excerpts were about to be published elsewhere, other magazines had paid for the rights to them, and Ford had never denied the facts at issue in the excerpts. “The majority's proposed test in [Monge] would effectively vest in the courts the power to circumscribe news stories and the sources upon which the media may rely,” Smith wrote.