In my past two articles I have discussed the principles of fair use and how they apply to allow someone to use copyrighted material without permission of the copyright owner. In my third and last article on fair use, I will give an example of a recent situation where a magazine publisher failed in its attempt to rely on fair use to protect the publisher’s use of newsworthy photographs.
This case involves the world of gossip magazines and Spanish soap operas. The plaintiff was Noelia Lorenzo Monge, a pop singer and model. In January 2007, Monge wed her manager, Jorge Reynosa, in a secret private ceremony in Las Vegas. The couple had employees of the chapel use their camera to take photographs of the ceremony.
Monge and Reynosa succeeded in keeping their wedding a secret for about a year and a half, until summer 2008 when their bodyguard somehow got his hands on the memory chip containing the photos of the wedding, among others. The bodyguard proceeded to sell the photos to Maya Magazines, publisher of the Spanish-language celebrity gossip magazine TV Notas.
Maya printed the wedding photos in February 2009, along with photos from the chip showing Monge on a bed in her underwear on her wedding night. The front page of the magazine read: The Secret Wedding of Noella and Jorge Reynosa in Las Vegas.
Monge registered copyrights in the photos and then sued Maya for copyright infringement among other things. The district court concluded that Maya’s use of the photos was a fair use. Monge appealed and the 9th Circuit reversed in a decision that came down several weeks ago in Monge v. Maya Magazines, Inc..
In its opinion, the 9th Circuit proceeded to analyze the case under the same four-part test discussed in my prior articles. In so doing, it noted that the factors have been referred to by other courts as billowing white goo, naught but a fairy tale, and so flexible as virtually to defy definition. Nevertheless, the court felt obligated to stick with the factors and try to make some sense of them.
1. Purpose and character of the use
The court started out by noting that the gossip magazine’s sensational coverage of the wedding does qualify as news reporting, which is listed in the copyright statute as an example of fair use. (17 U.S.C. ' 107.) But the mere fact that the copyrighted material is used for news reporting does not automatically make it a fair use. The use still has to be transformative.
Here the photographs were reproduced in their entirety. There was no cropping or adding of headlines and captions over the images. Maya argued that the publication of the photos in the magazine was nevertheless transformative because Maya transformed the photos from their original purpose (images of a wedding night) into newsworthy evidence of a secret marriage. The 9th Circuit rejected that argument, noting that the photos were not necessary to prove the fact of the secret marriage: The publicly available marriage certificate would have sufficed. Furthermore, a difference in purpose (Monge wanted wedding photos and Maya wanted to expose the wedding) is not the same thing as a transformative use.
Bottom line, Maya’s wholesale copying of the photos with some written commentary was at best minimally transformative. The first fair use factor, then, weighed against a finding of fair use.
2. Nature of the work
Here, the work consists of photographs, clearly a creative work. On the other hand, the works were unpublished. The Supreme Court has stated that under ordinary circumstances, the author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 555 (1985).
The 9th Circuit did not find that the case to be an extraordinary circumstance, and, accordingly, applied Harper & Row to conclude that the second factor weighed against a finding of fair use.
3. Amount and substantiality of the portion used
This factor analyzes the amount and substantiality of the portion used both quantitatively and qualitatively in relation to the copyrighted work as a whole. This was not a difficult analysis because Maya used every single photo of the wedding and almost every single photo of the wedding night. Given that, with one exception, the photos were not cropped at all, the 9th Circuit had no difficulty concluding that the heart of each individual copyrighted photo was copied.
Therefore, the third factor also weighed against a finding of fair use.
4. Effect on the potential market
The final factor is the effect of the use on the potential market for, or value of, the copyrighted work. Maya argued that there was no potential market for or value of the photos because Monge did not want to release the photos.
The problem with Maya’s argument, from the 9th Circuit’s perspective, is that Monge could always change her mind and decide to publish the photos one day. But now that Maya has published the photos, whatever value Monge might have received for the rights to the photos was gone: The cat was out of the bag.
Thus, the fourth factor also tipped against fair use.
With all four factors weighing against fair use, the 9th Circuit concluded that Maya’s publication of the photos could not be considered fair use. As the court noted, the mere fact that the photos were being used for news reporting is not a get out of jail free card in the copyright arena.
Fair use, then, is not a black and white area. It is based on a balancing test and whether a use is a fair one will depend on the specific facts of the case and, frankly, what judge you draw. That may not seem fair, but until Congress changes the Copyright statute, those are the rules.