First, Monge and Reynoso purchased the copyright to the photographs. Then, they sued Maya for copyright infringement for its unauthorized use of the photographs—not to vindicate any real value in the copyrighted work but as a means of suppressing and punishing truthful speech. The gambit worked. Although a district court originally found Maya’s activities protected under the fair-use doctrine, the U.S. Court of Appeals Ninth Circuit ultimately reversed and, in a 2012 published decision, deemed Maya liable for infringement. According to the appellate court, Maya’s actions constituted an unauthorized use of the heart of a series of unpublished creative works for the highly commercial purpose of tabloid journalism. Thus, Maya had, in the court’s view, improperly usurped first publication rights to the photographs, thereby depriving the rights-holders of the decision to license (or not license) those works as they wished.
But Monge and Reynoso’s victory came at significant cost to the First Amendment and, ultimately, to the vitality of our copyright system. By fetishizing property interests in copyright works at the expense of the public right of access to factual information, the decision effectively provided future plaintiffs with significant cover for disingenuous uses of copyright law to punish legitimate free speech on matters of public interest. And lest one think that the Maya decision only governs seemingly frivolous celebrity scandals, the precedent could just as easily be used to attach liability to the next publisher of the Pentagon Papers or other unpublished materials containing eminently newsworthy secrets.
