Noelia Monge v. Maya Magazines, Inc.
688 F.3d 1164
9th Cir.2012Background
- Noelia Lorenzo Monge and Jorge Reynoso sue Maya Magazines for copyright infringement over six unpublished wedding photos published in TVNotas.
- Photos were taken secretly at a Las Vegas wedding (January 3, 2007); memory chip with hundreds of images was stolen from the paparazzo Viqueira and sold to Maya for $1,500.
- Maya published six photos (three from the ceremony and three from the wedding night) with sensational headlines and a two-page spread.
- The district court granted Maya summary judgment on fair use; misappropriation claims were dismissed or unresolved; Maya awarded fees and costs on that motion.
- On appeal, the Ninth Circuit held Maya did not establish fair use; reversed and remanded for entry of summary judgment for the plaintiffs.
- The opinion emphasizes unpublished status, transformation, and market harm as central in weighing fair use against Maya’s commercial, newsworthy use.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fair use of unpublished photos | Monge & Reynoso contend unpublished photos weigh against fair use. | Maya argues news reporting plus transformative use supports fair use. | Fair use not established; district court erred; reversed and remanded |
| Transformation under factor 1 | Transformation is minimal; publication to expose secret wedding not sufficiently transformative. | Publication as exposé using editing and commentary is transformative. | Transformation not enough to overcome other factors; weighs against fair use |
| Amount and substantiality of use | Only six photos used from hundreds; selective use preserves fair use. | Six photos published largely in full; substantial appropriation weighs against fair use. | Weights against fair use; full or near-full use of core images harms defense |
| Effect on potential/actual market | Publication would not affect the market since couple hadn't planned to publish, but remains protected. | Publication may not affect markets; however, controlling first publication is important. | Harm to actual and potential markets weighed against fair use; market impact weighs strongly against Maya |
| Nature of the copyrighted work | Unpublished photographs are closer to core copyright protection and weigh against fair use. | Photos are factual/documentary; transformation reduces weight of this factor. | Unpublished nature weighs against fair use; probabilistic impact neutral or adverse |
Key Cases Cited
- Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (Supreme Court 1985) (unpublished works and confidentiality weigh against fair use; public-interest not a free pass)
- Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (Supreme Court 1994) (transformation and context govern factor weight; commercial use not per se unfair)
- L.A. News Serv. v. Reuters Television Int’l, 149 F.3d 987 (9th Cir. 1998) (newsworthiness alone not fair use; need transformation)
- Núñez v. Caribbean Int’l News Corp., 235 F.3d 18 (1st Cir. 2000) (transformation through montage; context matters)
- Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295 (3d Cir. 2011) (news reporting not automatically fair use; evaluate transformative use)
- Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d 622 (9th Cir. 2003) (look to whether the heart of the work was taken; complete copies weigh against fair use)
- Chicago Bd. of Educ. v. Substance, Inc., 354 F.3d 624 (7th Cir. 2003) (market harm and transformation considerations in fair use)
- Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110 (9th Cir. 2000) (market failure concept in fair use analysis)