Publishing ‘Stolen’ Photos Not Fair Use

Noelia Lorenzo Monge (via Monge biography)

Even the appellate judges think this story of a Latin pop singer, a secret wedding, purloined photos and a celebrity gossip magazine, “reads like a telenovela.”  The Spanish soap opera pits Puerto Rican pop singer Noelia Lorenzo Monge and her secret groom and manager, Jorge Reynoso, against a celebrity gossip magazine, which published photos of the couple’s wedding despite the couple’s efforts to keep the marriage under wraps.

U.S. District Judge Manuel Real in Los Angeles dismissed Monge’s copyright infringement claim against Maya Publishing Group, which published the stolen pictures in its TVNotas, Spanish language celebrity gossip magazine.  Real found publication of the pictures was fair use under copyright law.

But a 9th U.S. Circuit Court of Appeals panel reversed on Monday in  a 2-1 decision.  (Keep watching. The split vote with a visiting judge casting the deciding ballot on an important analysis of “fair use” may make this case a good candidate for en banc review.)

“The tantalizing and even newsworthy interest in the photos does not trump a balancing of the fair use factors,” wrote Judge Margaret McKeown.  The magazine failed to meet its burden of showing its commercial use of previously unpublished photos constituted fair use.

Monge married her manager in a secret Las Vegas wedding in 2007 that the couple kept secret even from their own families in order to prolong her image as a young, single pop singer, according to the court.  Wedding chapel employees took three photos of the wedding and later three others were taken in their wedding clothes and were intended from the couple’s private use.

They kept it secret for two years.  A paparazzo (photographer) who also worked as driver and bodyguard for the couple in Miami, allegedly found the photos on a memory chip and sold the pictures without permission.

The couple registered copyrights for the pictures only after they were published, according to the court.  But they sued for copyright infringement and misappropriation, nonetheless.

McKeown said that while the publication constituted “news reporting,” news organizations don’t enjoy a blanket exemption from copyright.

She noted the owners of the copyrights have the right to control the release of the works and that the magazine did nothing creative or transformative with the pictures but simply published private pictures.

Once published there were simply no market for the photos, according to the court.   Publication “completely usurped” the couple’s potential market for first publication.

Judge Milan D. Smith Jr. dissented stating, “Under the majority’s analysis, public figures could invoke copyright protection to prevent the media’s disclosure of any embarrassing or incriminating works by claiming that such images were intended only for private use.”

He worried that the implications of this analysis undermine the principles of a free press.

Public figures “should not be able to hide behind the cloak of copyright to prevent the news media from exposing their fallacies,” he said.

Judge Rudi M. Brewster, a visiting judge from Los Angeles, joined McKeown to form the majority.

Case:  Monge v. Maya Magazines, Inc., No. 10-56710

Photo: Lyricsreg.com

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