Panties: 1, Fair Use Doctrine: 0

by Greenberg Glusker Fields Claman & Machtinger LLP

Picture a sexy young bride, reclining sensuously on the nuptial bed.  Smiling seductively, she lifts her wedding dress — a stretch white mini — to give her new husband a glimpse of the lingerie covering her private parts.

The happy couple.  Fully clothed.Come to think of it, you don’t have to imagine this scenario.  You can see the photograph of pop artist/bride Noelia Monge and her manager/husband Jorge Reynoso in Issue 633 of TVNotas magazine.  (A decidedly less scandalous photo of the happy couple is here on the right.  Sorry, folks, this is a family-friendly blog.)

Didn’t know they were married, did you?  Neither did anyone else — until their hitherto personal wedding photos appeared in the aforementioned gossip magazine, unbeknownst to the couple.

In a case that even federal judges had to admit read like a telenovela, Monge and Reynoso sued publisher Maya Magazines in Los Angeles federal court, alleging copyright infringement and misappropriation of likeness.  The trial court dismissed the claims and held that the publisher had the right to publish the photographs under the fair use doctrine, which provides refuge from infringement claims when the use of copyrighted material is for purposes such as news reporting.

But last month, the Ninth Circuit reversed, holding that TVNotas’ publication of the happy couple’s extra-happy-looking photos was not protected by the fair use doctrine, setting up Monge and Reynoso to claim some damages. But in a world where celebrities are constantly battling to limit their exposure in the tabloid press, how did Monge and Reynoso win this fight?  And what does it mean for the constant struggle between celebrities and publishers?

Mum’s The Word

To maintain Monge’s image as a young single pop star, the couple went through great lengths to keep their 2007 wedding at the “Little White Wedding Chapel” in Las Vegas a secret.  No one other than the minister and two chapel employees knew.

That is, until Monge and Reynoso hired paparazzo Oscar Viqueira as a bodyguard — the celebrity couple’s decision to hire a paparazzo as a bodyguard being about as well-thought-out as hiring Jerry Sandusky as a babysitter.  One day, Reynoso borrowed Viqueira’s sport utility vehicle.  Afterwards, Viqueira claimed he found a microchip containing 400 private photographs and three videos of the couple, including photographs documenting the wedding.

Not one to pass on an opportunity, Viqueira tried to use the images to try to get Reynoso to pay money that the paparazzo claimed Reynoso owed him.  When that didn’t work, Viqueira sold the electronic images to magazine publisher Maya Magazines for $1,500.00 — not that I’m endorsing acquiescence to extortion here, but probably a fraction of the legal fees that Reynoso ended up shelling out once the photos went public.

Maya elected to publish six photographs of the wedding ceremony and the wedding night in TVNotas.  The cover featured photographs of Reynoso smoking a cigar in front of a neon Playboy logo and the one of Monge on the bed under the headline, “The Secret Wedding of Noelia and Jorge Reynoso in Las Vegas.”  Inside the magazine was a two-page spread featuring photos of the couple with a priest, kissing in wedding attire, at a bar after the ceremony and (you guessed it) the one of Monge on the bed.  A minimal amount of text accompanied the photos.

The couple learned about the magazine in February 2009, when Reynoso’s mother called and berated him for not telling her about the marriage.  He tried to deny it, but his protestations came too late — she had already seen the magazine.  (And with this reveal, here’s where La Fuerza del Destino would cut to a dramatic, cliffhanger commercial.[1])

Want to Control Your Photos in the Press?  Be Your Own Paparazzo

Most celebrities would love nothing more than to keep their (sometimes embarrassing) photos out of the tabloid press, but the fact that every supermarket aisle is as star-studded as a red carpet celebrity premiere shows that it can be an up-hill battle.  So how did Monge and Reynoso get the chance to block these photographs at all?  Simple:  they took them (or hired others to take them on their behalf), and so they owned the copyrights in the photos.  As a result, Monge and Reynoso could sue for copyright infringement, rather than relying on claims which are (because of the First Amendment) generally harder for celebrities to successfully pursue, such as invasion of privacy and infringement of likeness and publicity rights.

In this respect, Monge and Reynoso’s legal strategy resembles one used by many celebrities whose bedroom antics have leaked onto the web — the threat of copyright infringement claims has helped keep a lid on salacious video tapes and text messages featuring the likes of Eric “McSteamy” Dane and Tiger Woods.

Fair Use Trumps Copyright Claims

Monge and Reynoso sued Maya Magazines for copyright infringement in a Los Angeles federal court.  As its defense, Maya argued that its publication was newsworthy and thus lawful under the fair use doctrine.  As our blog’s regular readers should know by now, factors that go to fair use include (say it with me, kids):  (1) the purpose and character of the use, including whether it is of a commercial nature or is for non-profit purposes; (2) the nature of the copyrighted work; (3) the amount of substantiality of the portion used in relation to the copyrighted use as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.  Applying these factors, the trial judge agreed with Maya and dismissed the claims.

The Ninth Circuit disagreed, holding that the trial court had been wrong to find that certain factors of the fair use analysis were neutral, and that in fact, each factor weighed against a finding of fair use.

Factor one, the nature of the published use, did not support fair use because:  (a) the magazine was a commercial publication, (b) the article was not newsworthy, and (c) the use was not sufficiently “transformative,” i.e., Maya ran the full images without alteration or significant text.  The Court also found the second factor went against fair use because the photographs had not been published previously.

Similarly, the Court had no hesitation in finding factor three, substantiality of use, went against fair use.  Viewing each wedding photograph as a whole rather than a part of the original 400 purchased, the Court found, “Maya’s use was not just substantial, it was total.”

Finally, Maya’s “first and exclusive” publication totally diminished the commercial value of the photographs, because no one else was likely to buy them.  Even though the couple had intended to keep the photographs private, they may at some point have decided to sell them to TVNotas or another publication — in fact, Maya previously had paid Monge to pose for pictures, and Reynoso had sold vacation and wedding photographs of him and his former wife in the past for the collective sum of $65,000.  Maya itself had also previously paid for authorized access to celebrity wedding photos for other couples.

What Does This Mean for Your Favorite Gossip Rag?

The Ninth Circuit’s ruling dealt a significant blow to publishers and anyone seeking to report on the activities of celebrities or other public figures.  So what can we expect in the future?

First and foremost, publishers will have to be much more exacting in how they obtain photographs.  Here, Viqueira had assured the magazine that he was author of the photographs and had provided an assignment of the copyrights.  The magazine believed him.  Was this belief reasonable?  On the one hand, he did work for the couple and had sold photographs before.  But would Monge really have flashed her underwear to him?  (Just think about that one for a bit.)  The magazine’s belief that it had permission will be hotly debated during the damages phase of this case, but in any event, publishers will likely want to double-verify a standard copyright assignment.

Second, don’t be surprised if your favorite tabloid’s masthead introduces a new credit for “Lawyer/Copywriter/Layout Designer.”  In reaching its conclusion that Maya’s republication of Monge and Reynoso’s photos was not “transformative,” the Ninth Circuit disregarded Maya’s arguments about its editing, arrangement, and commentary, and focused on the lack of accompanying text.  Under this reasoning, the line between fair and unfair use of photographs may be set, in part, by how much the publisher has to say about the pictures at issue, and how it goes about saying it.  This could bring lawyers from the corporate suite into the newsroom.

Finally, the Ninth Circuit’s decision effectively introduces judicial oversight into how magazines illustrate and present their stories.  Maya had argued that its use of the photographs was newsworthy because the couple had continued to deny their marriage, and the pictures were needed to prove that they were lying.  The Ninth Circuit rejected this argument, reasoning that — particularly in light of the private nature of the photographs — the marriage could be proven by other sources such as the marriage certificate.  A dissenting judge, anticipating the anguished screams of newspaper and magazine editors everywhere, reasoned that the majority’s reasoning could be used to deny fair use protection to a newspaper that ran images in stories about a congressman’s or sports figure’s infidelities, so long as the transgressions could be proven by other means.  Could the media have proven Tiger Woods’ and Anthony Weiner’s indiscretions without republishing Woods’ outlandishly graphic sexts (warning:  not safe for work, children, or the faint-of-heart) or Weiner’s mercifully boxer short-covered copulation device photos (warning:  juxtaposition of crotch shot with yearbook photo is too hilarious for words)?  Probably.  But how much less entertaining would that have been for the rest of us?

While Monge and Reynoso’s marriage photos may not have been big news to anyone who can’t recite the local station numbers for Univision and Telemundo from memory, their case may have realigned the balance of power between celebrities and publishes for years to come.

[1] Quick, amazing telenovela-related aside:  the lead male character of La Fuerza del Destino, Ivan Villagómez, is described by Wikipedia as:  “An engineer with McGuire Corporation, Alicia’s dedicated son, Juan Jaime’s illegitimate son, Anthony McGuire’s adopted son, Arcelia’s godson, Alex’s father [seduced by Maripaz as a teenager], Maripaz’s dedicated ex-husband, Camilo’s best friend, half-brother of David and Judith, Saul’s dedicated half-brother, Lucia’s husband.” Got that?


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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