Federal appeals court rules against magazine that published copyrighted secret celebrity wedding photos

A federal appellate court ruled that a Spanish-language gossip magazine violated the copyrights of a celebrity couple by publishing private photographs of their secret wedding in a case that according to the court “reads like a telenovela."

The U.S. Court of Appeals in San Diego (9th Cir.) ruled this week against the Florida-based Maya Magazines, which publishes TVNotas, for printing photos of a secret wedding ceremony in Las Vegas between pop singer Noelia Lorenzo Monge and her producer-husband Jorge Reynoso without their permission. The couple hid their 2007 marriage to preserve Monge's image as a young, single celebrity and not even Reynoso’s mother knew of their nuptials until a paparazzo who occasionally worked as a bodyguard for the pair found a memory chip from their personal camera with photographs from the covert wedding. After failing to obtain money from the couple in exchange for returning the images, he sold the photos to TVNotas in 2009.

Of the six photos published that proved speculation that the two were married, Monge and Reynoso registered copyrights on five of them and then sued Maya for copyright infringement.

Maya argued that its publication of the personal photos was protected under the fair use doctrine of the federal Copyright Act, which states that under certain circumstances, disseminating copyrighted material for news reporting, among other reasons, does not constitute a copyright violation. A 1992 amendment to the act addressed the fair use standard of unpublished materials, noting that “the fact that a work is unpublished shall not itself bar a finding of fair use.”

In a 2-1 decision, the court found that when applied to the private photographs at issue, “waving the news reporting flag is not a get out of jail free card in the copyright arena,” according to the majority opinion authored by Judge M. Margaret McKeown. “Simply put, Maya did not sustain its burden of establishing that its wholesale, commercial use of the previously unpublished photos constituted fair use.”

Overturning a lower court’s dismissal of the copyright lawsuit, the appellate court ruled that Maya did not meet the fair use standard because it printed the images in full, without "transforming" them, for commercial gain while hindering the couple’s ability to regulate their publication and price.

“The courts and many legal scholars have commented that fair use is the most difficult issue in copyright law. It’s a mixed inquiry of fact and law, which oftentimes can lead to differing opinions on how the factors weigh out,” said Michael D. Kuznetsky, Monge and Reynoso’s attorney. “In this case, the court got it right.”

In a recent case that also hinged on the fair use doctrine, the U.S. District Court for the Southern District of New York dismissed a copyright infringement lawsuit in May against Bloomberg L.P. for its unauthorized publication of a conference call between a corporation's senior executives and a group of securities analysts. The recording in that case also was not "transformed" in any substantial way but the court noted that Bloomberg was still protected because "news reporting requires accuracy, which may be undermined by transformation."

In the suit against Maya, the court also took issue with the photos TVNotas chose to publish; the magazine obtained an image of the marriage certificate but instead printed a photo of Monge on her wedding night, revealing her underwear on a hotel bed.

"While we do not discredit Maya’s legitimate role as a news gatherer, its reporting purpose could have been served through publication of the couple’s marriage certificate or other sources rather than copyrighted photos," McKeown wrote.

In dissent, Judge Milan D. Smith, Jr. warned that the majority’s dismissal of the publisher’s fair use argument “thwarts the public interests of copyright by allowing newsworthy public figures to control their images in the press.” He added that, “without a fair use defense, the media would only have only been able to describe former Congressman Anthony Weiner’s self-portraits, rather than reprint the images themselves…this is a ‘dangerous’ intrusion upon both the sanctity of the free press and copyright.”

“Maya feels as though the dissenting opinion by Judge Smith got it right in that the interest in free press should control here," said Allen P. Lohse, an attorney for the publisher. He said Maya is reviewing the ruling and will consider an appeal.

Related Reporters Committee resources:

· The First Amendment Handbook: How to avoid copyright infringement — Legal action to protect a copyright