9th Circuit Rejects Tabloid’s Fair-Use Claim

     (CN) – A Spanish-language gossip magazine violated copyrights by publishing personal pictures of Puerto Rican singer Noelia’s secret Las Vegas wedding, the 9th Circuit ruled Tuesday.



     Click here to read Courthouse News’ Entertainment Law Digest.
     The federal appeals court in San Diego found TVnotas’ fair-use claims unpersuasive and voted 2-1 to reverse the district court’s ruling.
     “Waving the news reporting flag is not a get out of jail free card in the copyright arena,” Judge M. Margaret McKeown wrote for the divided three-judge panel.
     Published by Maya Publishing Group out of Miami Beach, Fla., TVnotas is a popular gossip magazine focusing on the lives of Latin American celebrities.
     Pop singer and model Noelia Lorenzo Monge, often called Noelia, and her husband, producer and manager Jorge Reynoso, sued Maya Publishing Group for copyright infringement in 2009 after the magazine published personal photographs of the couple’s 2007 marriage ceremony at a Las Vegas wedding chapel.
     The couple had intended to keep their marriage secret for personal and business reasons, according to the ruling, but it all came to light when the snapshots went public. Reynoso found out about the pictures being published when his mother called him, “berating him for getting married without telling her,” the ruling states.
     The magazine bought the pictures from a paparazzo who sometimes worked for the couple as a bodyguard and driver. He found the pictures on a memory chip left in his vehicle by Reynoso, and later sold them to TVnotas for $1,500.
     After registering copyrights for five of the six photos published by the magazine, the couple filed suit in Los Angeles.
     On cross motions for summary judgment, U.S. District Judge Manuel Real ruled for Maya based on fair use.
     The 9th Circuit reversed on appeal, finding that Maya had failed to meet the fair-use burden and was “without a single factor tipping in its favor.”
     The panel noted that Maya had engaged in a “wholesale, commercial use of the previously unpublished photos,” thus destroying the couple’s right to do the same.
     “Maya’s effort to document its exposé does not automatically trump the couple’s rights in its unpublished photos,” McKeown wrote.
     “The couple is undisputedly in the business of selling images of themselves and they have done so in the past and Maya itself paid $1,500 for prior photos,” she added. “Maya’s purchase of the pictures unequivocally demonstrates a market for the couple’s copyrighted pictures. … The demand for the pictures in the actual market, just as in the potential market, dropped significantly upon Maya’s first and exclusive publication.”
     In the dissenting opinion, Judge Milan Smith argued that the majority’s view allows public figures to hide behind a “cloak of copyright.”
     “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,” he wrote. “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.”
     Maya’s Miami-based attorney, D. Fernando Bobadilla, praised Smith’s dissent.
     “TVnotas is gratified by the well-reasoned dissent concluding that TVnotas violated no US copyright laws,” he told Courthouse News. “TVnotas and its lawyers are weighing all options.
     Michael Kuznetsky, the couple’s California attorney, said his clients feel “vindicated” by the circuit’s reversal.
     “We knew all along that Maya’s publication of the photographs was not protected by fair use,” he said. “The District Court judge made the wrong decision which has now been righted by the Ninth Circuit.”

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