The unauthorized use of copyrighted material may, under certain circumstances, be permissible under copyright’s “fair use” doctrine.  Fair use has been described as “the most troublesome [doctrine] in the whole of copyright” in that “courts are left with almost complete discretion in determining whether any given [fair use] factor is present in any particular use.”  Nevertheless, it is clear that fair use – specifically, the “news reporting” exception – will not serve as a blanket shield to avoid liability for the unauthorized use of copyrighted materials.  This was precisely the lesson conveyed by the Court of Appeals for the Ninth Circuit in Monge v. Maya Magazines, Inc., No. 10-56710 (9th Cir. Aug. 14, 2012).

Pop singer Noelia Lorenzo Monge and music mogul Jorge Reynoso were married in a secret ceremony on January 3, 2007.  The couple concealed their marriage to preserve Monge’s image as a single, young, and innocent pop star.  In 2008, Monge’s driver and bodyguard, Oscar Viqueira, found a memory card containing photographs of the wedding and wedding night in the ashtray of Monge’s sport utility vehicle.  Viqueira sold the photographs to Maya Magazine, Inc. (“Maya”).  In February 2009, Maya published the photographs in its TVNotas magazine without the couple’s permission.  The couple sued copyright infringement.  The district court granted Maya’s motion for summary judgment, finding the publication of the photographs constituted fair use under Section 107 of the Copyright Act.

The sole issue on appeal was whether the district court properly applied the fair use doctrine.  The Ninth Circuit’s analysis was guided by the four non-exclusive fair use factors in Section 107 of the Copyright Act: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (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 upon the potential market for or value of the copyrighted work.”  In addition, “[t]he fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of the above factors.”

The court focused much of its attention on the first fair use element and was guided by three underlying principles: news reporting, transformation, and commercial use.  First, the court noted that while the preamble to Section 107 cites “news reporting” as an example of a fair use, all forms of “news reporting” are not created equal.  Instead, to constitute fair use “news reporting,” the use of the photographs must maintain some “transformative value,” a term used in copyright law to describe a work that comments, criticizes, or otherwise adds something new to the original work.  With this understanding, the court held that Maya’s use of the unedited photographs lacked the necessary transformative value necessary to support a fair use defense.  Moreover, where a derivative work lacks transformative value, the courts will place more emphasis on its commercial nature.  Here, there was no question that Maya’s use of the photographs was entirely commercial, thereby mitigating against Maya’s fair use defense.

In regard to the nature of the work, the court held that the marginal creativity of the photographs, coupled with the unpublished status of the photographs – more specifically, the couple’s right to control the first public appearance of the photographs – weighed heavily against fair use.  As to the amount and substantiality of the photographs, the court held that “Maya’s use was not just substantial, it was total.”  Rather than publishing a single photograph, or some other source, such as the marriage certificate, both of which would have conveyed the necessary information regarding the couple’s nuptials, Maya chose to publish all of the photographs.  As to the final factor, there was little question that after Maya’s publication of the photographs, “the bottom literally dropped out of the market [and] neither Maya nor anybody else [was] likely to purchase these pictures from the couple.”  Given that all factors weighed against Maya’s fair use defense, the court reversed the lower court’s summary judgment holding and remanded the case for further proceedings.

Monge is a reminder that news outlets, celebrity or otherwise, are not immune from claims of copyright infringement simply because they are engaged in some form of “news reporting.”  Monge also serves as an example of how two courts may come to entirely different conclusions as to the viability of a fair use defense in a particular case.  Given the flexibility of the fair use standard, news outlets must be cautious when publishing copyrighted material without the express permission of the copyright owner and be familiar with those underlying factors that the courts will consider when confronted with a fair use defense.  Those that fail to recognize these limitations, or choose to ignore them, may soon have their own date in court.