To Judge M. Margaret McKeown of the U.S. Court of Appeals for the Ninth Circuit, the appeal in copyright case Monge v. Maya Magazines reads “like a telenovela, a Spanish soap opera.”
But Judge Milan Smith Jr. thinks the court should have written a different ending.
On Tuesday, McKeown wrote in Monge that a Spanish-language gossip magazine violated the copyright of a celebrity couple by publishing private wedding photographs that apparently had been stolen from them.
The magazine argued that publishing the photos met the fair use exception, in part because the photos had genuine news value: The couple had married in secret and publicly denied their marriage. McKeown disagreed. “Waving the news-reporting flag is not a get-out-of-jail-free card in the copyright arena,” she wrote.
Smith dissented, saying that under McKeown’s logic, golfer Tiger Woods could have blocked publication of his “sexts” by asserting copyright protection, and former congressman Anthony Weiner could have shut down publication of his sexually suggestive Twitter photos. “Although newsworthiness alone is insufficient to invoke fair use,” Smith wrote, “public figures should not be able to hide behind the cloak of copyright to prevent the news media from exposing their fallacies.”
Bobby Ghajar, an intellectual property partner at Pillsbury Winthrop Shaw Pittman in Los Angeles, said the ruling was “a cautionary tale that the news value defense is not an absolute defense, particularly when the copyrighted work is unpublished.”
Andrew Bridges, an IP litigator at Fenwick & West, said he thought Smith had the better argument, and that the case was really more about a stolen trade secret than an infringed copyright.
The suit was filed by Noelia Lorenzo Monge, a Puerto Rican pop singer known mostly by her first name, and her husband, Jorge Reynoso, a music producer. The couple married in Las Vegas in 2007, but kept it a secret to preserve Monge’s image as a youthful, single celebrity. Only three pictures were taken at the wedding, plus three more in their “nuptial garb” on their wedding night, including one of Monge lying on a bed with her underwear exposed.
About two years later, the couple’s driver found or stole a memory chip that contained the photos and sold them to Maya Magazines Inc. Maya had previously paid Monge to pose in its magazine H Para Hombres , but in this case it published the six photos without permission in its publication TVNotas . The cover of the magazine announced (in Spanish), “The secret wedding of Noelia and Jorge Reynoso in Las Vegas. We even have photos of their first night as a married couple.”
The news came as a shock, even to the couple’s own family. Reynoso’s mother called him to berate him about getting married without telling her, according to McKeown’s opinion. “Reynoso denied the marriage to his own mother, but to no avail,” McKeown wrote. “She had already seen the wedding photos in a gossip magazine.”
After reciting the melodramatic facts of the case, McKeown undertook a “long journey through the nooks and crannies of fair use law,” weighing the four factors courts use to determine whether a fair use exception applies.
McKeown began by noting that the factors have been described as “billowing white goo” by one academic. But she said a 1985 Supreme Court case, Harper & Row v. Nation Enterprises , was “particularly instructive” because it involved The Nation magazine’s unauthorized publication of verbatim excerpts from ex-President Gerald Ford’s upcoming memoir. The court held that despite the public interest in Ford’s thoughts about pardoning Richard Nixon, the excerpting was not a fair use. “In other words, the court did not give a fair use free pass to news reporting on public figures,” McKeown wrote.
And if the magazine only wanted to break the news of the couple’s wedding, McKeown added, it could simply have dug up the couple’s marriage certificate, a public record.
Further, she continued, the headlines and layout only “marginally transformed” the photos, cutting against fair use. Although the photos were not highly artistic, they were unpublished, again cutting against fair use. The magazine published all six of the photos, and with that publication, “the bottom literally dropped out of the market” — neither Maya nor anybody else is likely to buy the photos now.
“Following the statute, we consider each of the four factors and put them in the judicial blender to find the appropriate balance,” McKeown wrote. “Without a single factor tipping in its favor, Maya has not met its burden.”
McKeown’s opinion not only reversed summary judgment for Maya, it directed entry of summary judgment for Monge and Reynoso. U.S. District Judge Rudi Brewster of the Southern District of California, sitting by designation, concurred.
In dissent, Smith said the article was more than “a haphazard republication of the couple’s photos.”
“Framed around the couple’s refusals to confirm their marriage and to continue to represent Noelia as an ‘unwed sex symbol,’ Maya used the images as documentary evidence. We, as well as our sister circuits, have held that a photo montage, with accompanying commentary, may constitute a transformative use,” he wrote.
Smith distinguished Harper & Row by saying the Ford excerpts were about to be published elsewhere, other magazines had paid for the rights to them, and Ford had never denied the facts at issue in the excerpts.
“The majority’s proposed test would effectively vest in the courts the power to circumscribe news stories and the sources upon which the media may rely,” Smith wrote.
Ghajar suggested the decision could come into play in disputes between celebrities and tabloid publications that print unauthorized photos. Although decided strictly on copyright law, Ghajar said he could imagine the decision being cited in cases involving the right of publicity, particularly if it involves a previously unpublished image.
Bridges, meanwhile, said the goal of the copyright laws is incentivizing the creation and publication of work. “What’s going on here has nothing to do with creative expression,” he said, but rather “concealing the secrecy and privacy of the fact of [the couple's] marriage.” The result, he said, is “an indirect and awkward way of protecting trade secrets.”
Michael Kuznetsky of Universal City, Calif.’s Kuznetsky Law Group argued the case for Monge and Reynoso. D. Fernando Bobadilla of Miami’s the Bobadilla Law Firm argued for Maya.
Scott Graham is a reporter for The Recorder, a Legal affiliate based in San Francisco. •