Pattishall IP Blog

September 27, 2012

Publication of Noelia’s Secret Wedding Photos Not Fair Use, Ninth Circuit Finds

Filed under: Copyright, First Amendment, Litigation — Tags: , , , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 4:10 pm

By: Seth I. Appel

The Ninth Circuit Court of Appeals held that a gossip magazine’s publication of photographs of a secret celebrity wedding did not constitute fair use under the Copyright Act.  Monge v. Maya Magazines, Inc., 688 F.3d 1164 (9th Cir. Aug. 14, 2012).

Noelia Lorenzo Monge, the Puerto Rican pop singer and model known to the world as Noelia, married her manager, Jorge Reynoso, in January 2007.  The couple attempted to keep their marriage a secret to maintain Noelia’s image as a single sex symbol.  Only the minister and two chapel employees witnessed the wedding ceremony.  For two years Noelia and Reynoso succeeded in keeping their marriage a secret, even from their families.

In the summer of 2008, Oscar Viqueira, a paparazzo who worked as a driver and bodyguard for Noelia and Reynoso, discovered a memory chip containing photographs of the wedding night.  Viqueira sold the photos to Maya Magazines for $1,500, without Noelia’s or Reynoso’s permission.

Maya published three photos of the wedding ceremony, and three additional photos from the wedding night, in Issue 633 of TVNotas Magazine.  Until then, the photos had been unpublished.  The TVNotas cover headline stated:  “The Secret Marriage of Noelia and Jorge Reynoso in Las Vegas.”  The photo spread inside referred to the “first and exclusive photos of the secret wedding.”  Issue 633 was the first time the public learned of the wedding – including Reynoso’s mother, who berated her son for getting married without telling her.

Noelia and Reynoso promptly registered the copyrights in five of the photos and then brought suit against Maya for copyright infringement.  The Central District of California granted summary judgment in favor Maya based on fair use.  2010 WL 3835053 (Sept. 30, 2010).  The Ninth Circuit reversed.

Fair use is an affirmative defense to copyright infringement.  The fair use doctrine, the Ninth Circuit explained, presumes that unauthorized copying has occurred but protects such copying under certain circumstances.  Section 107 of the Copyright Act enumerates four factors for courts to consider in evaluating a fair use defense:

(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. (more…)

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