On August 14, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued its 2-1 ruling in Monge v. Maya Magazines, Inc., over a dissent by Judge Milan D. Smith, Jr.
The dispute before the court centered on photos of the wedding of two Latin American celebrities, Noelia Lorenzo Monge, a pop singer and model, and Jorge Reynoso, a music producer and her manager (“the couple”). Importantly, this was a wedding that the couple themselves had scrupulously tried to keep secret, and had, indeed, kept secret even from their own families for two years after the ceremony had occurred, apparently so that the bride could retain her image as a single woman in front of her fans.
When photos of the wedding emerged, the couple sued Maya Magazines Inc. and Maya Publishing Group, LLC (together, “Maya”), the two related entities that had published the photos, in a Spanish-language gossip magazine, after receiving the photos from a paparazzo who apparently had stolen them from the couple.
Notably, Maya had previously paid Monge to pose for photographs of her that then appeared in its magazines; and Maya had also previously paid Reynoso for photos of his earlier wedding, to another woman, to appear in one of its magazines. But neither Monge nor Reynoso was paid by the magazine for the publication of the stolen photos of their wedding.
Thus, the couple registered copyrights in all but one of the wedding photos that Maya had published, and went to court to vindicate their right to the photos.
The Ninth Circuit’s three-judge panel ruled in the couple’s favor, 2-1, holding that Maya’s unpermitted use of the couple’s photos of their secret wedding was not “fair use” under the copyright law, contrary to what the district court judge had held.
The Four Fair Use Factors, and How the Panel Majority Applied Them
As the Ninth Circuit panel explained, the fair-use analysis consists of a four-part test, with four key factors that must be considered by the court.
For each factor, I’ll explain the panel majority’s analysis in this case below. Overall, the burden is on the party seeking to establish fair use of a copyrighted work.
The First Factor: The Purpose and Character of the Use
The first fair-use factor looks to the purpose and character of the use, including whether the use is of a commercial nature, or is for nonprofit educational purposes.
Here, the answer to the commercial/nonprofit question was a no-brainer: The use was commercial, cutting sharply against a fair-use finding.
Maya, as the panel majority determined, surely hoped to profit from its sales of the magazines that included the photos of the couple’s wedding. (Indeed, as noted above, Maya clearly had profited in the past from paying each member of the couple for photographs of him or her, and thus Maya could surely expect to profit from these photographs, as well.)
But another aspect of the use of the wedding photos cut the other way: It was a commercial use, granted, but it was also a news-reporting use, which copyright law favors, as does the First Amendment. And that fact was a strike in favor of a fair-use finding.
Finally, the panel had to consider, under this first factor of the analysis, whether Maya’s use of the photos was a “transformative use”—that is, a use of the work that altered its original nature.
Even a highly commercial use, like the one Maya made of the wedding photos, may be protected from a copyright infringement suit, if it is also a truly transformative use. But just adding something to a photo that you’ve appropriated doesn’t necessarily equate to creating a transformative use.
To give an example, the panel majority noted, for instance, that adding a voiceover to the famous Rodney King beating, was not a transformative use, for what viewers really wanted was to see what had happened—that is, they wanted to see the beating itself, after hearing about it on the news. Thus, the voiceover, which only described what viewers could already see for themselves, added little, if anything, and could not be deemed transformative.
Did Maya, then, transform the couple’s wedding photos sufficiently that it could make a claim of transformative use, and thus begin to make a fair-use case? The panel majority said no. Despite minor cropping of the photos, and the addition of photo headlines and captions, the panel majority still deemed Maya’s use of the wedding photos not to be a transformative one. The changes and additions that were made by Maya, the panel majority concluded, were too minor for that.
More specifically, the panel majority held that Maya’s use of the photos was not transformative because it did not lead to the creation of a new work, nor was it incorporated into a broader work.
“[W]holesale copying sprinkled with written commentary” was, the panel majority held, not enough to contribute to a fair-use finding, and that was all the majority saw in the feature on the wedding.
In summary, the presence of news reporting supported a case for this fair-use factor, but the lack of transformative use, and the presence of commercial use undermined that same case.
The Second Factor: The Nature of the Copyrighted Work
That brings us to the second factor in the fair-use analysis, the nature of the copyrighted work.
Here, courts consider the extent to which a work is creative—which, if proven, triggers greater protection for the work in the face of a fair-use claim.
And courts also, in appropriate instances, consider whether the work at issue is truly previously unpublished. If so, that also triggers greater protection against a fair-use claim. Under the law, copying a published work is less grave than copying an unpublished one.
Here, it was clear that the photos at issue were previously unpublished. But were they creative enough to fulfill the other part of this judicial test, which would then help fend off the fair-use contention?
In this case, despite the lack of a professional photographer, the panel majority wisely found the wedding photos at issue to be “pictorial,” and not merely “factual,” which cut against a fair-use finding.
In categorizing the photos, the panel majority reasoned that even photos that simply document important events may still be “pictorial,” and not merely “factual.”
Moreover, the panel majority held that the combination of the presence of genuinely-unpublished photos (with lack of prior publication a fact that Maya could hardly dispute, as its magazine had used that very fact as a selling point!), and at least some minimal pictorial quality that could be ascribed to those photos, made the answer clear: Here, too, the fair-use factor was not fulfilled, and the photos remained protected by copyright law.
I feel somewhat uncomfortable about the factual/pictorial distinction that the panel majority made here, though, for several reasons. In this case, that distinction did not prevent the panel majority from reaching what I believe is the right result, and protecting the couple. Yet, more generally, I think it’s improper to have judges of law also be judges of photography. And the factual/pictorial divide that the panel majority endorsed seems very elusive to me.
Dueling experts could, of course, be brought in to aid judges in categorizing the photographs at issue, but their presence would add uncertainty to the otherwise relatively straightforward fair-use test.
Moreover, it seems unfortunate that wealthy people who can hire professional wedding photographers, will now have more legal protection for their photographs as a result, since their wedding photos will surely always be deemed “pictorial.”
What about poor young couples whose only wedding photos come from a photo booth? When they get famous someday, will their old photos, including the compromising or embarrassing ones, be available to all and sundry in the tabloids, on the ground that they’re not “pictorial” enough because no human being was involved in taking them?
Maybe the “important event” category will save such a couple when it comes to their wedding photos. But their other photo-booth shots might be up for grabs, simply because they couldn’t afford their own camera when they were young.
The idea of buying superior photos and essentially buying superior legal protection in the bargain is surely unfair.
One of the most moving aspects of Ms. Monge and Mr. Reynoso’s marriage, to me, is that, though they likely could have hired the fanciest photographer in the land, they didn’t. It was just the two of them and their private photographs—until a thief violated their wishes. The law shouldn’t attach legal risks to their choice to use a modest camera.
The Third Factor: The Proportional Amount and Substantiality of the Portion of the Work That Is Used
The next factor in the fair-use analysis is the amount and substantiality of the portion of the work that is used, in relation to the copyrighted work as a whole.
Here, too, the answer is simple: Maya used each of the six of the wedding photos the couple possessed. Thus, Maya used the entire work—the set of wedding and wedding-night photos.
The Fourth, and Last Factor: The Effect on the Market for the Work
The final factor of the fair-use analysis—and, according to the Supreme Court, the most important factor of all—focuses on the effect of the contested use upon the potential market for, or the actual value of, the copyrighted work. Here, the court looks to both the actual and potential markets for a given work.
And here, too, the answer as to the effect on the market is clear. Maya didn’t just print the wedding photos, it scooped the world on those photos. And a scoop like that naturally and dramatically devalues any additional like photos that follow.
Consider, by comparison, the huge sums paid by U.S. celebrity magazines for the first photos of the babies of the famous. With such magazines putting those baby photos on their covers, there’s no question that the magazines believe that such photos will drive sales, and they are surely in a position to know, having published such photos and noted the ensuing newsstand sales, for a very long time. It’s also clear that magazines believe that they need to have the very first photo people will see, to maximize reader interest and therefore to maximize profits.
The Panel Majority’s Conclusion: No Fair Use Protection for Maya
For the panel majority, this was a walkover. Not a single one of the four fair-use factors, the majority concluded, was fulfilled.
Put another way, Maya’s publication of the photos, the court held, made commercial, non-transformative use of the entirety of a set of previously unpublished creative works, and therefore decimated any actual or potential market for the works.
If a worst-case scenario for a copyright defendant existed, this was definitely it. Maya should have settled with the couple, rather than continue this litigation.
Judge Smith’s Dissent
With such a strong case in favor of a finding of copyright infringement, it’s surprising that one judge dissented here.
Judge Smith’s main concern was that creativity would suffer under the majority’s ruling. He expressed the fear that celebrities could now claim that any image of them was meant for private use. Accordingly, he would have allowed the three photos of the wedding itself (but not the other three photos) to be used by Maya.
With respect to the fair-use factors, Judge Smith saw sufficient transformative use in the “stylized spread” in which the photos were placed; the juxtaposition of some negative commentary regarding Monge with the spread; and the editing that had to be performed to put the whole spread together.
Judge Smith also gave Maya credit for using the images in a new context. For the couple, he pointed out, these photos were evidence of their wedding; for Maya, they were part of an expose.
Judge Smith also was worried about the overuse, by celebrities, of privacy protections—envisioning, for instance, Anthony Weiner or Tiger Woods forbidding the press from reprinting their controversial texts. And Judge Smith was concerned, as I am, about judges of law becoming judges of photographic art.
Judge Smith also took issue with other aspects of the majority decision, but to me, these are the most central of his cavils. While some of Judge Smith’s points have merit, the majority also makes a strong case on the four fair-use factors, suggesting that there may be a probability here of further judicial review down the road.