Wednesday, August 15, 2012
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Court Revives Suit Over Publication of Celebrity Wedding Photos
Divided Ninth Circuit Panel Says Magazine’s Exploitation of Unreleased Images Went Beyond Fair Use
By KENNETH OFGANG, Staff Writer
A Spanish-language magazine’s “wholesale, commercial use” of previously unpublished photos of a Latin American celebrity couple’s wedding did not constitute fair use under the Copyright Act of 1976, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In a 2-1 decision, the panel overturned the summary judgment won by Maya Magazines, Inc. in defense of a suit by Noelia Lorenzo Monge and Jorge Reynosa.
Monge, who generally goes by her first name alone, is a Puerto Rican pop singer and model. Her husband, Reynosa, is her manager and a music producer and was previously married to Mexican singer and actress Pilar Montenegro.
They were married in Las Vegas in a 2007 ceremony at which the only persons present were the couple, a priest, and two wedding chapel employees who took a handful of photos using Monge’s camera. The marriage was kept a secret, even from their families, until 2009, they testified, when six photos—three of the ceremony and three from their wedding night—appeared in the magazine TVNotas.
Both plaintiffs had prior dealings with Maya, which paid Monge to pose for pictures in another of its publications, H Para Hombres, and which paid Reynoso $25,000 for photos of his wedding to Montenegro and $40,000 for photos of their French vacation.
No Permission
It was undisputed, however, that they never gave Maya or anyone else permission to use the photos, which the publisher apparently obtained from a papparazo, Oscar Viquiera, who occasionally worked for the couple as a driver/bodyguard on visits to Miami.
Viqueira allegedly found a memory chip, containing the wedding photos, along with hundreds of others and some videos, in his car after he loaned it to Reynoso, and claimed that he sold it to Maya for $1,500 after Reynoso refused to pay him some money that he owed him.
The couple claimed that they had intentionally kept the marriage, which had been rumored from time to time in Spanish-language media, secret in order to preserve both their privacy and Monge’s image—she is currently 32 years old—as a young, single celebrity.
After the photos were published, the couple registered copyrights in five of the photos and sued Maya for copyright infringement and misappropriation of their likenesses.
Maya pled fair use as an affirmative defense and moved for summary judgment, which was granted by U.S. District Judge Manuel Real of the Central District of California.
But Judge M. Margaret McKeown, in her opinion for the appellate court, said summary judgment should have been granted to the plaintiffs, rejecting the fair use defense under the non-exclusive four-factor test set forth in the act.
The relevant section requires the court to consider, among other relevant factors:
“(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.”
‘News Reporting’
McKeown rejected the argument that publication of the photos as part of “news reporting” was sufficient to support a finding of fair use. While there is “little doubt that the gossip magazine’s sensational coverage of the wedding qualifies as news reporting,” she wrote, “fair use has bounds even in news reporting.”
Given the undisputedly commercial nature of the publication, the lack of any transformative use, the lack of any creativity on the part of the publisher, the fact that the published photos were the only ones taken on the day and night of the wedding, and the fact that the defendant “completely usurped...the couple’s potential market for first publication of the photos,” the balance of factors weighs against a finding of fair use, the judge wrote.
Senior Judge Rudi M. Brewster of the Southern District of California, sitting by designation, concurred in the opinion.
Judge Milan D. Smith Jr. argued in dissent that the defendant had sustained its burden of showing fair use with respect to at least three of the photos, and that triable issues remained with respect to the others.
“To satisfy a celebrity couple’s desire to control their public images, the majority extends inapposite case law to undercut the fair use doctrine and the free press,” Smith wrote.
The wedding photos, the dissenting jurist wrote, were particularly newsworthy because they proved the rumors that the couple married, so their publication was fair use as a matter of law. The other two photos, he said, “did not directly prove the Couple’s wedding and therefore may have been unnecessary to the story,” so summary judgment should not have been granted to either side.
Michael D. Kuznetsky of the Kuznetsky Law Group, P.C. in Universal City argued the case for the plaintiffs. Miami lawyer D. Fernando Bobadilla argued for the defendants, who were also represented by Angela C. Agrusa and Allen P. Lohse of Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor LLP in Los Angeles.
The case is Monge v. Maya Magazines, Inc., 10-56710.
Copyright 2012, Metropolitan News Company