Nunez v. Caribbean International News

• Decision Date: 15 November 2000
• Docket Number: No. 99-2266,99-2266
• Citation: 235 F.3d 18
• Parties: (1st Cir. 2000) SIXTO NuNEZ, Plaintiff, Appellant, v. CARIBBEAN INTERNATIONAL NEWS CORP. (EL VOCERO DE PUERTO RICO), Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 18

235 F.3d 18 (1st Cir. 2000)

SIXTO NuNEZ, Plaintiff, Appellant, v. CARIBBEAN INTERNATIONAL NEWS CORP. (EL VOCERO DE PUERTO RICO), Defendant, Appellee.

No. 99-2266.

United States Court of Appeals, For the First Circuit.

Heard Nov. 15, 2000.

Decided December 21, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Jaime Pieras, Jr., U.S. Senior District Judge. [Copyrighted Material Omitted] Jose Guillermo Gonzalez, with whom Jose Manuel Urrutia-Velez, was on brief, for appellant.

Juan R. Marchand-Quintero, with whom Francisco Ortiz-Santini and Juan R. Marchand-Quintero Law Offices, were on brief, for appellee.

Before Torruella, Chief Judge, Lynch, Circuit Judge, and Garca-Gregory,^* District Judge.

TORRUELLA, Chief Judge.

This appeal raises the question whether the reproduction of independently newsworthy photographs without permission is a "fair use" pursuant to 17 U.S.C. § 107 when those photographs were acquired and reproduced in good faith and the work had already been distributed on a limited basis.

Because we find that such use is fair, we affirm the district court's grant of summary judgment.

BACKGROUND

Appellant Nunez, a professional photographer, took several photographs of Joyce Giraud (Miss Puerto Rico Universe 1997) for use in Giraud's modeling portfolio. Nunez then distributed the photographs to various members of the Puerto Rico modeling community in accordance with normal practice. After the photographs had been taken, some controversy arose over whether they were appropriate for a Miss Puerto Rico Universe, based on the fact that Giraud was naked or nearly naked in at least one of the photos. A local television program displayed the photographs on screen and asked random citizens whether they believed the photographs were "pornographic." Giraud was interviewed by two local television stations as to her fitness to retain the Miss Universe Puerto Rico crown. El Vocero then obtained several of the photographs through various means. Over the next week, without Nunez's permission, three of his photographs appeared in El Vocero, along with several articles about the controversy.

Nunez claimed that the reprint of his photographs in El Vocero without his permission violated the Copyright Act of 1976. The district court applied the fair use test of 17 U.S.C. § 107.¹ Focusing on the "newsworthy" nature of the photographs, the difficulty of presenting the story without the photographs, and the minimal effect on Nunez's photography business, the court concluded that El Vocero had met the requirements of § 107 and dismissed the complaint with prejudice.

DISCUSSION

A. Standard of Review

Fair use is a mixed question of law and fact. Harper & Row, Publishers, Inc. v. The Nation Enters., 471 U.S. 539, 560 (1985). When the district court, as here, has found sufficient facts to evaluate each of the statutory factors, we need not remand but may determine fair use as a matter of law. Id. Although the factors enumerated by Congress in § 107 are not meant to be exclusive, they are especially relevant to the overall fair use inquiry. Id. We thus examine each factor in turn. The ultimate determination of whether a use is fair requires a case-by-case analysis in which the four factors are to be "weighed together in light of the purposes of copyright." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994).

B. The Purpose and Character of the Use

The first factor in the fair use inquiry is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." 17 U.S.C. § 107(1). The focus of this analysis asks "whether the new work merely 'supersedes the objects' of the original creation or instead adds something new." Campbell, 510 U.S. at 579 (quoting Folsom v Marsh, 9 F.Cas. 342, 348 (C.C.D. Mass. 1841)). The more "transformative" the new work, the less the significance of factors that weigh against fair use, such as use of a commercial nature. Id.

The district court found that appellee Caribbean both sought to "inform" and "gain commercially," and that the two purposes offset each other in the fair use analysis. For a commercial use to weigh heavily against a finding of fair use, it must involve more than simply publication in a profit-making venture.² See id. at 584; American Geophysical Union v. Texaco, 60 F.3d 913, 921 (2d Cir. 1994) (expressing wariness of emphasis on commercial use because most secondary users seek commercial gain). After all, activities such as news reporting (which is explicitly provided for in the preamble to § 107) "are generally conducted for profit in this country." Campbell, 510 U.S. at 584 (quoting Harper & Row, 471 U.S. at 592). We agree with the district court that the commercial use here, however, constitutes more than mere reproduction for a profitable use. The photographs were used in part to create an enticing lead page that would prompt readers to purchase the newspaper. Thus El Vocero used the photograph not only as an ordinary part of a profit-making venture, but with emphasis in an attempt to increase its revenue. Cf. Haberman v. Hustler Magazine, Inc., 626 F. Supp. 201, 210 (D. Mass. 1986) (pictures not displayed on magazine cover or advertising, but reproduced in regular feature section). For this reason, the commercial nature of the reproduction counsels against a finding of fair use.

However, the district court also found that the pictures were shown not just to titillate, but also to inform. Puerto Ricans were generally concerned about the qualifications of Giraud for Miss Puerto Rico Universe, as is demonstrated by the several television shows discussing the photographs. This informative function is confirmed by the newspaper's presentation of various news articles and interviews in conjunction with the reproduction. Appellee reprinted the pictures not just to entice the buying public, but to place its news articles in context; as the district court pointed out, "the pictures were the story." It would have been much more difficult to explain the controversy without reproducing the photographs. And although such an explanatory need does not always result in a fair use finding, seeIowa State Univ. Research Found. v. American Broad. Cos., Inc., 621 F.2d 57, 60 n.6 (2d Cir. 1980), it weighs in the favor of appellee.

This is not to say that appellee's use of the photographs was necessarily fair merely because the photographs were used for news purposes, nor does it establish a general "newsworthiness" exception. First, the Supreme Court has specifically frowned upon such an exception. See Harper & Row, 471 U.S. at 561 ("The fact that an article arguably is 'news' and therefore a productive use is simply one factor in a fair use analysis."). Second, the problem with such an approach (as the Supreme Court pointed out) is that it provides an incentive for the infringer to create "news," so that its infringement falls within the exception. See id. at 562. Were a "newsworthy" use per se fair, journalists and news photographers would be left with little assurance of being rewarded for their work. See id. at 558. It suffices to say here that El Vocero did not manufacture newsworthiness, as it sought not to "scoop" appellant by publishing his photograph, but merely to provide news reporting to a hungry public. And the fact that the story is admittedly on the tawdry side of the news ledger does not make it any less of a fair use. See id. at 561 ("Courts should be chary of deciding what is and what is not news.").

Rather, what is important here is that plaintiffs' photographs were originally intended to appear in modeling portfolios, not in the newspaper; the former use, not the latter, motivated the creation of the work. Thus, by using the photographs in conjunction with editorial commentary, El Vocero did not merely "supersede[] the objects of the original creation[s]," but instead used the works for "a further purpose," giving them a new "meaning, or message." Campbell, 510 U.S. at 579. It is this transformation of the works into news - and not the mere newsworthiness of the works themselves - that weighs in favor of fair use under the first factor of § 107. See id. (central inquiry is whether defendant's use is transformative"); see also Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 478 (1984) (Blackmun, J., dissenting) (key question is whether defendant's use "result[s] in some added benefit to the public beyond that produced by the first author's work").

Appellee's good faith also weighs in its favor on this prong of the fair use test. See Harper & Row, 471 U.S. at 562-63; Haberman, 626 F. Supp. at 211. First, El Vocero attributed the photographs to Nunez. Although acknowledgment does not excuse infringement, the failure to acknowledge counts against the infringer. See Narell v. Freeman, 872 F.2d 907, 914 (9th Cir. 1989). Second, El Vocero obtained each of the photographs lawfully. An unlawful acquisition of the copyrighted work generally weighs against a finding of fair use; no such theft occurred here. See Haberman, 626 F. Supp. at 211. Third, as the district court explicitly found, El Vocero did not aim to use the photographs to compete with Nunez, nor to supplement his right of first production, as the photographs had already been distributed to the modeling community. See id. at 212. Finally, appellee asserts that it believed in good faith that the photographs were available for general, unrestricted circulation and redistribution, and appellant offers little evidence to rebut this assertion.

In sum, the highlighting of the photograph on the front cover of El Vocero exposes the commercial aspect of the infringing use, and counts against the appellee. However, the informative nature of the use, appellee's good faith, and the fact that it would have been difficult to report the news without reprinting the photograph...