Monge v. Maya Magazines, Inc.

• Decision Date: 14 August 2012
• Docket Number: 11–55483.,Nos. 10–56710,s. 10–56710
• Citation: 12 Cal. Daily Op. Serv. 9240,2012 Copr.L.Dec. P 30300,688 F.3d 1164,40 Media L. Rep. 2209,2012 Daily Journal D.A.R. 11250,103 U.S.P.Q.2d 1907
• Parties: Noelia Lorenzo MONGE, an individual; Jorge Reynoso, an individual, Plaintiffs–Appellants, v. MAYA MAGAZINES, INC., a Florida Corporation; Maya Publishing Group, LLC, a Florida Limited Liability Company, Defendants–Appellees. Noelia Lorenzo Monge, an individual; Jorge Reynoso, an individual, Plaintiffs–Appellants, v. Maya Magazines, Inc., a Florida Corporation; Maya Publishing Group, LLC, a Florida Limited Liability Company, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

688 F.3d 1164

2012 Copr.L.Dec. P 30,300

103 U.S.P.Q.2d 1907

40 Media L. Rep. 2209

12 Cal. Daily Op. Serv. 9240

2012 Daily Journal D.A.R. 11,250

Noelia Lorenzo MONGE, an individual; Jorge Reynoso, an individual, Plaintiffs–Appellants,

v.MAYA MAGAZINES, INC., a Florida Corporation; Maya Publishing Group, LLC, a Florida Limited Liability Company, Defendants–Appellees.

Noelia Lorenzo Monge, an individual; Jorge Reynoso, an individual, Plaintiffs–Appellants,

v.Maya Magazines, Inc., a Florida Corporation; Maya Publishing Group, LLC, a Florida Limited Liability Company, Defendants–Appellees.

Nos. 10–56710, 11–55483.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 6, 2012.

Filed Aug. 14, 2012.

Michael D. Kuznetsky (argued), Kuznetsky Law Group, P.C., Universal City, CA, for the plaintiffs-appellants.

D. Fernando Bobadilla (argued), The Bobadilla Law Firm, Miami, FL; Angela C. Agrusa and Allen P. Lohse, Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor LLP, Los Angeles, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. No. 2:09–cv–05077–R–SS.

Before: M. MARGARET McKEOWN and MILAN D. SMITH, JR., Circuit Judges, and RUDI M. BREWSTER, Senior District Judge.^*

Opinion by Judge McKEOWN; Dissent by Judge MILAN D. SMITH, JR.

OPINION

McKEOWN, Circuit Judge:

This appeal reads like a telenovela, a Spanish soap opera. It pits music celebrities, who make money by promoting themselves, against a gossip magazine, that makes money by publishing celebrity photographs, with a paparazzo, who apparently stole the disputed pictures, stuck in the middle. Noelia Lorenzo Monge and Jorge Reynoso (“the couple”), Latin American celebrities, claim that Maya Magazines, Inc. and Maya Publishing Group, LLC (collectively “Maya” or “the magazine”) infringed their copyrights by publishing previously unpublished photos of their clandestine wedding in “TVNotas,” a Spanish-language celebrity gossip magazine. The district court granted Maya summary judgment on the ground that publication of the images was fair use under the Copyright Act of 1976. We disagree and reverse. The tantalizing and even newsworthy interest in the photos does not trump a balancing of the fair use factors. Simply put, Maya did not sustain its burden of establishing that its wholesale, commercial use of the previously unpublished photos constituted fair use.

Factual and Procedural Background

I. The Cast

Noelia Lorenzo Monge is a pop singer and model. Jorge Reynoso is her manager and husband, and a music producer. Oscar Viqueira is a paparazzo who occasionally worked as a driver and bodyguard for the couple during their visits to Miami. Maya publishes multiple magazines, including the celebrity gossip magazine “TVNotas.” In the past, Maya has paid Monge to pose for pictures published in its magazine, “H Para Hombres.” Reynoso was paid $25,000 for photos of his wedding to his former wife Pilar Montenegro, as well as $40,000 for photos of his vacation in Paris with Montenegro.

II. The Set

Monge and Reynoso were married at the “Little White Wedding Chapel” in Las Vegas, Nevada on January 3, 2007. Valuing their privacy, and Monge's image as a young, single pop singer, the couple went to great lengths to keep the wedding a secret: only the minister and two chapel employees witnessed the ceremony. Using Monge's camera, chapel employees took three photos of the wedding; later that night at least three more photos of Monge and Reynoso in their nuptial garb were also taken. The pictures were intended for the couple's private use. For two years Monge and Reynoso succeeded in keeping their wedding a secret, even from their families.

In the summer of 2008, Reynoso used Viqueira's sport utility vehicle. Viqueira claims that after Reynoso returned the car, Viqueira found a memory chip in the ashtray. When Viqueira looked at the files on the memory chip, he found the photos of the couple's secret wedding, along with an assortment of other photos and videos. Viqueira tried to capitalize on the files to extort money he claimed Reynoso owed him. When this plan failed, in February 2009, Viqueira sold to Maya all of the electronic files he had taken “to recuperate the payment for [his] work.” The price was $1,500. The couple testified, and Maya does not contest, that Viqueira did not have permission to take or sell any of the images on the memory chip.

III. The Drama

Reynoso received a phone call from his mother in February 2009, berating him for getting married without telling her. Intent on secrecy, Reynoso denied the marriage to his own mother, but to no avail: She had already seen the wedding photos in a gossip magazine. Maya had published six of the stolen photos—three of the wedding ceremony and three of the wedding night—in Issue 633 of TVNotas. Prior to Issue 633, the photos were unpublished. The headline on the front cover of the magazine stated: “The Secret Wedding of Noelia and Jorge Reynoso in Las Vegas.” ¹ The byline stated: “We even have photos of their first night as a married couple!” This text was positioned beside the wedding photo on the cover. Three photos were reproduced on the cover: one showing Monge lying on a bed revealing her underwear; one of Reynoso smoking a cigar in front of a neon Playboy logo; and one depicting the newly-married couple.

Inside the magazine, the photos were featured over a two-page spread. “Apparently, the couple married in Las Vegas in January 2007!” was written on the top of the spread. “First and exclusive photos of the secret wedding of Noelia and Jorge Reynoso” was also printed in large font on the spread.

The left side of the spread was comprised of one large wedding photo, a reprint from the cover. Printed on top of this photo was: “Only in TVNotas”; and the caption read: “In fact, a lot has been said about a supposedly secret wedding in Las Vegas, Nevada, that took place in January 2007, but until now, no one had shown photos of that memorable day. TVNotas got a hold of those photos and shows them to you now, exclusively.”

The right side of the spread was comprised of four photos. The photos showed the couple next to a priest, kissing in wedding attire, and at a bar. The picture of Monge on a bed with her underwear showing, also published on the cover, was repeated. The footer of this page stated: “Although the couple has declined to confirm their marriage, these photos that we got speak for themselves.”

These six images were the only ones Maya published from the assortment of approximately four hundred images and three videos obtained from Viqueira. Maya did not publish other supporting evidence such as a marriage certificate, choosing instead to rely solely on the sensational photos. The couple claims that the three wedding photos published comprise every wedding photo taken, and that the three photos of the wedding night comprise almost every photo of the wedding night. Maya does not challenge either contention. Nor is there any dispute that Maya generated revenue from sales of Issue 633. Maya also admits that, in the past, it has paid for exclusive rights to publish pictures of celebrity weddings, including other celebrity weddings depicted in Issue 633.

IV. The Court Proceedings

Soon after publication of the pictures, the couple registered copyrights in five of the six published photos—all the published pictures, except the one where the couple appears together in front of a Playboy logo.² Monge and Reynoso then filed a complaint against Maya asserting claims for copyright infringement, statutory misappropriation of likeness, and common law misappropriation of likeness.

The district court dismissed the misappropriation of likeness claims and struck the couple's claims for statutory damages under the Copyright Act. The parties filed cross-motions for summary judgment. The district court granted Maya's motion for summary judgment based on fair use under 17 U.S.C. § 107, and also granted Maya's motion for attorney's fees and costs.

Analysis

The sole issue on appeal is whether the district court properly granted summary judgment in favor of Maya predicated on the fair use doctrine. We review de novo the district court's finding of fair use, a mixed question of law and fact. Kelly v. Arriba Soft Corp., 336 F.3d 811, 817 (9th Cir.2003).

I. The Fair Use Doctrine

The fair use doctrine has been called “the most troublesome in the whole law of copyright.” Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir.1939) (per curiam). This affirmative defense presumes that unauthorized copying has occurred, and is instead aimed at whether the defendant's use was fair. As with all affirmative defenses, Maya as the defendant bears the burden of proof. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 561, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). Despite its claim that it purchased the photos in good faith, “the innocent intent of the defendant constitutes no defense to liability.” 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.08[B][1] (Matthew Bender rev. ed.2011) (footnote omitted).

Fair use is a central component of American copyright law. Although its roots, like copyright law itself, may be traced to English courts,³ the doctrine first took hold in this country in Justice Story's opinion in Folsom v. Marsh, 9 F.Cas. 342 (No. 4901) (C.C.D.Mass.1841). He wrote that “a fair and bona fide abridgement of an original work[ ] is not a piracy of the copyright of the author.” Id. at 345. Foreshadowing future commentary on fair use, Justice Story noted that “what constitutes a fair and bona fide abridgement, in the sense of the law, is one of the most difficult points, under particular circumstances, which can well arise for judicial discussion.” Id. Justice Story characterized copyright cases as approaching “the metaphysics of the law, where the distinctions are, or at least may...