Appeals Court Ruling on Stolen Photos Marks Big Win for Hollywood Stars

Celebrities will cheer a decision that could limit the publication of sex tapes and other private photos, but one judge warns of the harm to media.

The 9th Circuit Court of Appeals has issued an important decision that will be welcomed by celebrities and cause news organizations some anxiety.

In Monge v. Maya Magazines, the appellate circuit dealt with whether a tabloid had the "fair use" right to publish stolen copyrighted photographs of a secret wedding between two Latino stars. And in addressing the case, the appellate judges dealt with one of the thorniest issues in copyright law and handed down a decision that, among other things, could nearly put a halt to the release of celebrity sex tapes without consequence.

The appellate circuit sets up the case by comparing it to a "telenovela," and it does so without exaggeration.

The case involved pop singer/model Noelia Lorenzo Monge, who secretly married her manager and music producer Jorge Reynoso. The two wed in a Las Vegas chapel in 2007 and managed to keep their nuptials secret for two years -- even from their parents!

To ensure privacy, Monge and Reynoso brought their own camera and had chapel employees take pictures. These photos were kept private until Oscar Viqueira, a paparazzo who also worked as a bodyguard and driver, discovered a memory chip in the ashtray of his vehicle lent to Reynoso. Viqueira then tried to extort money from the couple that he claimed Reynoso owed him. When that didn't work, he sold the photos for $1,500 to Maya, which publishes TV Notas, a Latino tabloid that published them to the shock of many, including Reynoso's mother.

The couple registered a copyright on the photos and sued the publication for copyright infringement and misappropriation of likeness. A district court tossed the case based on fair use -- the exception to copyright law that allows limited use under certain circumstances.

On Wednesday, the 9th Circuit reversed the decision by a 2-1 vote and remanded the case back to the district court.

In getting there, Circuit Judge Margaret McKeown deals with the fair use doctrine, which she notes has been called "the most troublesome in the whole law of copyright."

The problem of fair use -- or chief attribute, depending on how one looks at it -- has long been that there are no bright red lines that guide this exception to copyright authority, codified by Congress in 1976. Courts determine fair use on a case-by-case basis, analyzing four key factors, including the purpose and character of use, the nature of the copyrighted work, the amount of copyrighted material used in relation to the work as a whole and the effect of the use upon the potential market for the work.

In general, news reporting has been given ample fair use by courts.

"We have little doubt that the gossip magazine’s sensational coverage of the wedding qualifies as news reporting," writes McKeown. "Our role in this regard is not as a literary critic."

However, the judge notes that being newsworthy is just one factor in the overall analysis. "In other words, fair use has bounds even in news reporting, and no per se 'public interest' exception exists," she writes.

So the judge examines the other factors, including the degree of transformation occasioned by Maya’s use and its commercial nature. There, she notes that the photographs were reproduced essentially in their entirety. She says that "neither minor cropping nor the inclusion of headlines or captions transformed the copyrighted works."

Next, turning to the issue of the amount of copyrighted material used, McKeown says the magazine copied 100 percent of the photos.

"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," she writes. "Even absent official documentation, one clear portrait depicting the newly married couple in wedding garb with the priest would certainly have sufficed to verify the clandestine wedding. Maya used far more than was necessary to corroborate its story."

Finally, the analysis centers on the effect of the use upon the potential market. Monge and Reynoso were not out to make money on their photographs. Nevertheless, the photos were valuable, and they could have sold them, had they wished. "Recognizing that fair use focuses on potential, not just actual, market harm, we note there is little doubt that an actual market exists for the photos," she writes.

The judge concludes that, "Waving the news-reporting flag is not a get-out-of-jail-free card in the copyright arena."

The decision is a huge victory for celebrities. Longtime readers of this column will remember how Hollywood attorney Marty Singer dealt with the leak of a sex tape involving clients Rebecca Gayheart and Eric Dane. Because Dane was holding the camera, the lawyer argued, he had a copyright interest in the video. Had a lawsuit against Gawker continued instead of settling, Dane might have been able to enjoy the same kind of victory just given to Monge and Reynoso.

But not everyone will be pleased with the outcome of the Monge case.

In a sharp dissent, Judge Milan Smith Jr. warns of the consequences of what the 9th Circuit just decided.

"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," he writes.

"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," Smith continues. "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."

The full decision is on the next page.

E-mail: Eriq.Gardner@thr.com

Twitter: @eriqgardner

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