Emerson once said that, through the abstraction of ideals, choice may come without consequence. And so, in many instances, publication of a found photograph by news media will come without consequence. However, in the 2012 decision in Monge v. Maya Magazines, Inc., 688 F.3d 1164 (9th Cir. 2012), the Ninth Circuit Court of Appeals held that the unauthorized use of unquestionably newsworthy photographs to prove a disputed fact, in and of itself, did not show “fair use” of the photos. The opinion, which came with a sharply written dissent, is a reminder to newsrooms that a found photo, even one bearing on a matter in controversy, may not be held sufficiently “transformative” to prove fair use. As Justice Story put it back in 1841 in Folsom v. Marsh, and as noted by the Monge court, applying fair use approximates the “metaphysics of the law,” where the distinctions are sometimes “almost evanescent.” While this analysis may take place in the abstract, Maya Magazines’ choice to publish came with real-world consequences.
The facts of this case are perhaps not the run-of-the-mill newsroom situation. Nevertheless, Monge sets out argument and authority by which publication of many a found photo might result in liability. Puerto Rican pop singer and model Noelia Lorenzo Monge married her manager, Jorge Reynoso, at the Little White Wedding Chapel in Las Vegas on January 3, 2007, witnessed only by the minister and two chapel employees. Using Monge’s camera, chapel employees took three photos of the wedding; later that night, at least three more photos of Monge and Reynoso in their nuptial garb were also taken. For two years, Monge and Reynoso succeeded in keeping their wedding a secret, even from their families. After loaning his SUV to Reynoso, however, a paparazzo who worked for Monge and Reynoso found a memory chip in the ashtray with photos of the couple’s secret wedding, along with an assortment of other photos and videos. After failing to obtain money from the couple for return of the photos, the paparazzo sold them to Maya Magazines, which featured them with “First and exclusive photos of the secret wedding of Noelia and Jorge Reynoso” printed in large font. Shortly after publication, Monge and Reynoso registered copyrights in five of the six photos.
Copyright Act of 1976
There is virtually no discussion in the opinion regarding the legal impact of the fact that neither Monge nor Reynoso actually took the photographs at issue. The court determined Maya Magazines’ use was not fair on the basis of the non-exclusive factors incorporated from the common law into the Copyright Act of 1976:
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
Monge prefaces its analysis with a discussion of two Supreme Court cases that are “key” to its analysis: Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), and Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994), involving, respectively, Nation’s publication of lengthy excerpts from the memoirs of President Gerald Ford (about to be published by Harper & Row), which the Supreme Court found not to be fair use, and 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman,” which the Court held could qualify as fair use even though a commercial parody.
Fair Use Factors
The majority noted that the first fair use factor included three principles in the case that “simultaneously complement and yet are in tension” with one another: news reporting, transformation, and commercial use. Although news reporting is specifically listed in the preamble to the copyright statute as an example of fair use, it is not sufficient itself to sustain a per se finding of fair use. For example, in L.A. News Service v. Reuters Television Int’l, 149 F.3d 987 (9th Cir. 1998), despite the newsworthiness of the videos at issue (which documented the Rodney King beating during a riot in Los Angeles), their mere rebroadcast was not in itself transformative. Even though the news station in that case “apparently ran its own voice-over, it does not appear to have added anything new or transformative to what made the [ ] work valuable—a clear, visual recording of the beating itself.” The court therefore analyzed the degree of transformation occasioned by Maya Magazines’ use and the commercial nature of its use.
Maya Magazines had argued, relying on Núñez v. Caribbean Int’l News Corp., 235 F.3d 18 (1st Cir. 2000), that publication of the photos as an exposé transformed the photos from images of a wedding night into evidence of a clandestine marriage. Núñez involved a photographer’s suit against a newspaper that published risqué photographs of a woman that had won the title of “Miss Universe Puerto Rico.” In at least one photo, the woman appeared naked or nearly naked. After the risqué photographs were broadcast, the model was interviewed about “her fitness to retain the Miss Universe Puerto Rico crown.” The newspaper published the photographs without the photographer/copyright holder’s permission, along with several articles about the controversy. However, the Monge opinion held that the controversy in Núñez was whether the salacious photos themselves were befitting a Miss Universe Puerto Rico, and whether she should retain her title, whereas here the “photos were not even necessary to prove the controverted fact—the marriage certificate, which is a matter of public record, may have sufficed to inform the public that the couple kept their marriage a secret for two years.”
While the Monge opinion takes the position that the wedding itself is the story, not the photos that document it, it must be noted that the majority spends a footnote refuting that the trial court record showed Monge and Reynoso denied the marriage – even while conceding that the couple concealed the fact of the wedding. The distinction between denying the existence of a fact and attempting to conceal it is a fine one and worthy of a metaphysical discussion in itself. The perceived need for this footnote would seem to show that the majority concedes the applicability of fair use to exposés of facts denied by a public figure.
The court nevertheless found that Maya Magazines did not transform the photos into a new work or incorporate the photos as part of a broader work, but rather left the inherent character of the images unchanged, and because Maya Magazines’ “minimal transformation” of the photos was “substantially undercut” by its undisputed commercial use, it concluded that “at best” the first factor was neutral regarding fair use.
Under the second fair use factor, the opinion addressed the extent to which the photos were creative and whether they were unpublished. With virtually no analysis, and no reference to the fact the photos were all taken by bystanders to the event, the court stated that “[s]imply because a photo documents an event does not turn a pictorial representation into a factual recitation.” Notably, none of the analysis touches upon the distinction between the level of creativity necessary for a photo to meet the threshold of copyrightability and creativity for the purpose of determining fair use. Given that what made these photos newsworthy was that they documented facts in controversy, this analysis should give pause to a newsroom editor. The court then focused on the very fact the photos were secret: “the unpublished nature of a work is a key, though not necessarily determinative, factor tending to negate a defense of fair use.”
Among other issues, the court’s analysis on this factor has significance for the purpose of distinguishing between photographs found in an ashtray of an SUV and those found on Facebook in terms of applicability of fair use. Indeed, media use of Tiger Woods’ “sexts” and former U.S. Rep. Anthony Weiner’s sexually suggestive tweeted photograph was distinguished by the majority on the basis that Woods and Weiner “distributed their ‘masterpieces’ to others.” However, it may also be said that the sexts and photo were the stories, as much as the photo in Núñez. Under this analysis, would the posting of a photograph on Facebook be sufficient distribution, where such photograph is “not the story itself,” to undercut the emphasis the majority gives to the fact the wedding photos were unpublished? It should also be noted that, according to Reynoso’s testimony in the case, the primary reason the wedding (and photos) were not published was to preserve Monge’s status as a sex symbol.
Under the third fair use factor, while the court did not “discredit Maya’s legitimate role as a news gatherer,” it again found the reporting purpose could have been served through publication of other sources rather than copyrighted photos. In this regard, the court appears to be getting deep into the editorial process. While a marriage certificate might well have provided evidence of the wedding, publication of the photographs would show its location and circumstances, which arguably enhances the credibility of the news report. This tension between copyright law and the First Amendment has long been recognized in the cases, and the fair use doctrine has been referred to as “a substantial rule of copyright law that can on occasion reduce the inherent tension between free speech and property rights in expression.”
The final fair use factor is “the effect of the use upon the potential market for or value of the copyrighted work.” Maya Magazines had argued, and the district court had agreed, that no potential market for the pictures existed because the couple did not intend to sell publication rights to the photos. The Monge majority, however, held that “[p]ublication of an author’s expression before he has authorized its dissemination seriously infringes the author’s right to decide when and whether it will be made public, a factor not present in fair use of published works,” and found that Maya Magazines’ use, even if credited as mildly transformative, nonetheless functioned as a market replacement for the photos.
Copyright Claim on “Found” Photos?
However, the majority opinion does not address the doctrine of “market failure,” that is, when an author keeps a work from being published for the purposes of concealing information. This “market failure” analysis is also frequently applied where the copyright holder is not interested in seeing a parody of work in the public domain. Indeed, in Campbell, the case regarding the parody of “Oh, Pretty Woman,” the copyright holder had refused to license the song after review of the lyrics of the parody. It should be central to the analysis that Monge and Reynoso were not withholding publication not based upon a Salingerian desire to control the destiny of their creative output, but to foreclose publication of photos definitively proving a disputed fact.
It’s “fair” to say that the holding in Monge provides argument and authority for a copyright claim on virtually any “found” photograph. As with many metaphysical disquisitions, however, it has low predictive value.