Questionable Fair Use Decision Allows Celebrities To Block Publication Of Newsworthy Photos

from the four-factor-mess dept

We've noted before just how fickle fair use determinations can be when judges go through the standard four factor test of what qualifies as fair use. I've heard lawyers say that with any fair use case, it's possible to make an argument that will make all four factors side with one party -- meaning that the courts can basically just decide who they think should win and fit the analysis to that end result. You can see that quite clearly in the 9th Circuit appeals court ruling and dissent in the Monge v. Maya Magazines case (pdf and embedded below).

The case involves a pair of Latin American celebrities (the singer Noelia Lorenzo Monge and her manager/husband Jorge Reynoso). Because they wanted to cultivate the image that Monge was single, the couple tried to keep the news of their marriage (done quietly in Las Vegas) secret from everyone (including their parents). Someone who did some driving for the couple found a memory card that included a bunch of photos and videos, and because he claimed he hadn't been paid what was owed, he sold the card to a magazine, who found photos showcasing the couple's wedding, and published a story with the images.

So here's the question: is this fair use? Unfortunately, the majority stampeded through the four factor test like a bull set on the red flag at the end, tossing aside any sort of reasoned analysis, and finding against fair use on every account. To do so, it had to twist quite a few concepts and make some highly questionable claims about the law. Just as a starting point, the court argues that the anti-circumvention measures of the DMCA "supersede" the key ruling in the Sony Betamax case that made VCRs and time-shifting legal. If that's true, it's certainly news to many copyright lawyers. I asked a few and none could understand this particular claim.

From there the four factors fell one-by-one, as the court seriously suggested that such photos weren't newsworthy and that the same story could have been written without the photos by using other evidence (like a marriage certificate).

I'd walk through and highlight the mistakes made by the majority decision in great detail... except that I don't need to. Because Judge Milan Smith did a better job than I ever could with the dissent, picking apart the mistakes of the majority ruling with detailed citations for why it was wrong. However, I do think that Smith may have overstated some of the significance of the case in his opening:

Copyright is not an inviolable right that confers upon creators absolute control and ownership over their creations. Copyright protection was enacted “[t]o promote the Progress of Science and useful Arts” by creating a system in which authors and artists may reap the benefits of their creative contributions.... The fair use doctrine was designed to act as the counterbalance to copyright by “permit[ting] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.”...

The majority’s fair use analysis in this case is inconsistent with Supreme Court precedent, and thwarts the public interests of copyright by allowing newsworthy public figures to control their images in the press. The majority contends that the public interest in a free press cannot trump a celebrity’s right to control his image and works in the media—even if that celebrity has publicly controverted the very subject matter of the works at issue. 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. The implications of this analysis undermine the free press and eviscerate the principles upon which copyright was founded. Although newsworthiness alone is insufficient to invoke fair use, public figures should not be able to hide behind the cloak of copyright to prevent the news media from exposing their fallacies.

I think this actually would only apply to photos over which the celebrity held copyright -- so not "any" works, as Judge Smith says. That could be an important distinction (in fact, one might question whether or not the couple actually holds a legitimate copyright registration, since they did not take the picture, and while not true in every case, it's mostly accepted that the photographer holds the copyright, even when using someone else's camera). However, that issue isn't even up for consideration here. The case is focused exclusively on whether or not this was fair use.

And for each prong that the majority finds against fair use, Smith makes compelling arguments that fair use clearly applies. Here's just one example, concerning the purpose of the use:

The majority contends: “[i]n one sense, the parties’ purposes are identical: Photographic documentation of the wedding.” However, the majority repeatedly confuses the original subject matter of the photos with the intended use of the images. For the Couple, these were personal images, originally taken to capture the night of their marriage. After they were married, however, the photos were kept secret for the Couple’s commercial gain. As Reynoso testified, the images were withheld from the public solely for “marketing” purposes, in order to maintain Noelia’s “image of being a single singer appeal to young people.” (“Q: Why did you decide to have a secret wedding? A: I just mentioned to you that we’re trying to protect her image of being a single singer to appeal to young people . . . Q: Were there any other reasons? A: No, just marketing reasons.”). For Maya, the photos were used as direct, documentary evidence of a clandestine wedding that had been hidden from the public for years, disproving the Couple’s representations to the contrary.

If you look around, it's not that difficult to find some of the photos in question. Normally I'd post at least one with the story, but given this ruling, I'm at least sufficiently concerned about doing so. I would argue that, rather than the wedding itself, this particular story really is just focused on the photo image, which would make it much more likely to be considered fair use. But, as noted, the judges can be pretty arbitrary on this particular issue...

Filed Under: copyright, fair use, jorge reynoso, journalism, noelia lorenzo monge