A Telenovela Appeals Court Ruling
Celebrities, Fair Use & TVNotas
“[N]ewsworthiness, by itself, is insufficient to demonstrate fair use.”
— Monge v. Maya Magazines, 2012.
By Andrew Hudson Published: August 22, 2012 Updated: November 26, 2013
“This appeal reads like a telenovela, a Spanish soap opera.” So starts a dramatic U.S. Ninth Circuit ruling which limits how news organizations can use stolen private photos of celebrities.
“[O]ne [photo] … would certainly have sufficed … [defendant] used far more than was necessary to corroborate its story … ”
— Monge v. Maya Magazines, 2012.
Scene: Las Vegas, January 2007
On January 3, 2007, Latin American celebrities Noelia Lorenzo Monge and Jorge Reynoso got married at the “Little White Wedding Chapel” in Las Vegas, Nevada. As the telenova plays:
Valuing their privacy, and Monge’s image as a young, single pop singer, the couple went to great lengths to keep the wedding a secret: only the minister and two chapel employees witnessed the ceremony.
Using Monge’s camera, chapel employees took three photos of the wedding; later that night at least three more photos of Monge and Reynoso in their nuptial garb were also taken. The pictures were intended for the couple’s private use.
For two years Monge and Reynoso succeeded in keeping their wedding a secret, even from their families.
Scene: Miami, Summer 2008
Oscar Viqueira was an occasional driver and bodyguard for the couple. In the summer of 2008, in the ashtray of a car, he found a memory chip with six photos from the wedding. After trying but failing to extort money from the groom, the driver sold the couple’s photos (without their permission) for $1,500 to Maya Magazines, publisher of TVNotas.
Scene: Miami Beach, February 2009
All six photos were published in TVNotas as an exclusive in February 2009, under the headline (translated) of “The Secret Wedding of Noelia and Jorge Reynoso in Las Vegas.” Significantly to the ruling:
Maya did not publish other supporting evidence such as a marriage certificate, choosing instead to rely solely on the sensational photos.
The couple claims that the three wedding photos published comprise every wedding photo taken, and that the three photos of the wedding night comprise almost every photo of the wedding night.
Scene: Los Angeles, July 2009
Soon after publication of the pictures, the couple registered copyrights in five of the six published photos. Monge and Reynoso then filed a complaint against Maya asserting claims for copyright infringement, statutory misappropriation of likeness, and common law misappropriation of likeness.
The district court dismissed the misappropriation of likeness claims and struck the couple’s claims for statutory damages under the Copyright Act.
…The sole issue on appeal [was] whether the district court properly granted summary judgment in favor of Maya predicated on the fair use doctrine.
Scene: San Diego, August 2012
The Ninth Circuit ruled that use of the photos, although illustrative, was not necessary for the news, and thus was not a “fair use.” Fair use is an exception to copyright law [17 USC §107] for social benefit such as “news reporting” but is open to interpretation and much debated. As Judge McKeown explained:
Although news reporting is an example of fair use, it is not sufficient itself to sustain a per se finding of fair use.
… The tantalizing and even newsworthy interest in the photos does not trump a balancing of the fair use factors.
Perhaps setting the scene for a sequel, a dissenting opinion by Judge Smith called the ruling “a dangerous intrusion upon both the sanctity of the free press and copyright.” Although Smith’s dissent was deemed, by majority judges McKeown and Brewster, an “overblown” “doomsday prediction,” it also played to the telenovela angle:
The logical extension of the majority’s reasoning could produce absurd results.
If public, newsworthy figures were permitted to invoke a ‘private use’ exception, Tiger Woods, for example, could have claimed copyright in his sexting messages and, without fair use, the media would have no right to quote them.
Likewise, without a fair use defense, the media would have only been able to describe former Congressman Anthony Weiner’s self-portraits, rather than reprint the images themselves.
Eriq Gardner of the Hollywood Reporter believes this “could nearly put a halt to the release of celebrity sex tapes without consequence.” Certainly it further muddies the waters of fair use of photos in news reporting. But then all’s fair [use] in love and war.
Before the commercial break, here are some choice quotations from the majority ruling by Judge M. Margaret McKeown:
“Fair use is a central component of American copyright law.”
“[F]air use has bounds even in news reporting, and no per se ‘public interest’ exception exists.”
“[A news magazine] cannot simply take fair use refuge under the umbrella of news reporting.”
“[P]ublication of photographic evidence that constitutes proof of a newsworthy event is not automatically fair use …”
“The photos were not even necessary to prove [the] controverted fact … a public record may have sufficed to inform the public …”
“[The determination of fair use] is neither a mechanistic exercise nor a gestalt undertaking, but a considered legal judgment.”
“Waving the news reporting flag is not a get out of jail free card in the copyright arena.”
Sources: Eriq Gardner at Hollywood Reporter, Google Scholar. Image 1: The cover of TVNotas (#820, 8/13/12) at the time of the Ninth Circuit’s decision (8/14/12). Image 2: The seal of the United States Court of Appeals for the Ninth Circuit by U.S. Government, from Wikipedia.Next page: 46MP Canon EOS-3D X in the works?