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Nude photos deemed newsworthy in fair use case

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    NMU         FIRST CIRCUIT         Copyrights & Trademarks         Jan 5, 2001    

Nude photos deemed newsworthy in fair use case

  • When the photos of a Miss Universe contestant became the center of a news story, the media could publish them without offending copyright law, a federal appeals court said.

A Puerto Rico newspaper’s publication of photos of a nude Miss Universe contestant was valid under the fair use defense to copyright infringement cases, the U.S. Court of Appeals in Boston (1st Cir.) ruled on Dec. 21 in upholding a district court’s decision.

The appeals court cited the “newsworthy” nature of the photographs as the main reason they met the fair use requirements. Using the language of the district court, the First Circuit said “the pictures were the story”and therefore constituted a news-related use despite their placement on the front page, presumably to prompt readers to buy the newspaper.

Sixto Nunez photographed Joyce Giraud, Miss Universe Puerto Rico 1998, for her portfolio and, following the normal practice, distributed the photos to various people in the modeling community. The photos prompted a controversy over whether such images, which featured Giraud naked or nearly naked, were an appropriate depiction of the reigning Miss Universe Puerto Rico.

Local television stations interviewed Giraud about her fitness to keep the crown and included the photographs as part of the story. The newspaper El Vocero then ran several articles about the controversy along with reprints of three of the photographs. The newspaper did not obtain permission from Nunez to reprint the photos.

Nunez claimed the news organization violated copyright laws by not obtaining his permission to reprint the photographs. The district court applied the fair use test and found El Vocero met the requirements.

On appeal, the court also agreed that the news organization’s use of the photographs passed the fair use test.

In addition to the news value of the photographs, the court also considered the minimal effects on Nunez’s ability to market the photographs, the good faith in which the newspaper acquired the photographs and the fact that they were previously distributed in deciding to grant summary judgment in favor of the newspaper.

The court of appeals strayed from the district court’s opinion only by looking at the effect on the marketability of the photographs themselves instead of any possible effect on Nunez’s photography business. However, both courts agreed that the minimal effects did not warrant a decision against the newspaper.

(Sixto Nunez v. Caribbean International News Corp.; Media Counsel: Juan Marchand-Quintero) EH

© 2001 The Reporters Committee for Freedom of the Press

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