Can you reproduce unpublished photographs you found on the street? MONGE v. MAYA

A copyright is a set of exclusive rights granted to the creator of an original work of expression. Copyright law protects original works of expression like books, music, movies, and photographs. A copyright owner is granted the exclusive right to reproduce, distribute, display, perform, transmit and make derivative works based on the original. If someone exercises one of these exclusive rights, without authorization, that can constitute copyright infringement. A copyright owner can respond to copyright infringement by filing a lawsuit to stop the infringement and get monetary damages.

The rights granted by copyright law in the United States have some limitations. One of the limitations of copyright law in the United States is known as fair use. A defendant in a copyright infringement lawsuit can claim that its use of a copyrighted work is protected by fair use and not be held liable for copyright infringement. When a court is presented with a fair use defense to a copyright infringement claim, the court analyzes four factors. Those four factors are: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market.

Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on the facts of a specific case. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.

Typically when a fair use defense is used in the context of new reporting, the courts give the defendant significant deference. This is because it is very difficult to report on a topic without showing the copyrighted work. However, news reporting does not grant a defendant immunity from liability for copyright infringement.

MONGE v. MAYA MAGAZINES, INC., 688 F.3d 1164 (9th Cir. 2012) is an example of a case where the publication of unpublished photographs was found to not be a fair use.

Plaintiffs in this case are Latin American celebrities Noelia Lorenzo Monge and Jorge Reynoso who were married in secret. Plaintiffs went to great lengths to keep their marriage secret, taking only a few unpublished photographs of their wedding. More than a year later, their chauffeur found a memory chip containing the photos in a car ashtray. The chauffeur demanded money from plaintiffs for return of the memory chip, but plaintiffs did not pay. The chauffeur then sold the photos to defendant Maya Magazines, Inc. which published them in a celebrity gossip magazine. The district court held that the publication of the photographs by Maya was protected by fair use. Plaintiff appealed that decision to the Court of Appeals for the Ninth Circuit.

In its opinion, the Ninth Circuit acknowledged that defendant’s coverage of the wedding was newsworthy, but newsworthiness does not make a use transformative. The use of the photos was only marginally transformative, as neither minor cropping nor adding headlines and captions transformed the works, and such use was commercial. The nature of the copyrighted work weighed slightly in favor of fair use because, while the homemade photographs were not artistic, the photographs were not factual. The amount and substantiality of the used portion weighed additionally against fair use because the most important part of each picture was published. Finally, the court found that an actual market for celebrity wedding photos existed, given that both parties engaged in the purchase and sale of such works, and that the potential market for these particular photos was “substantially harmed” by defendant’s unauthorized first publication. The Ninth Circuit concluded that defendant’s wholesale, commercial use of the previously unpublished photos was not fair use.

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