Is Fair Use a Viable Defense for Stolen Photos?

A majority of the Ninth Circuit Court of Appeals does not seem to think so, thus raising the question of the extent to which copyright allows newsworthy public figures to control their images in the press.

Singer/model Noelia Lorenzo Monge secretly married her manager and music producer Jorge Reynoso in a Las Vegas chapel in 2007. The couple kept their marriage a secret, even from their parents, for two years until a memory chip in a borrowed car found its way to the TVNotas magazine. The magazine published six of the stolen photos—three of the wedding ceremony and three of the wedding night.

The majority decision in Monge v. Maya Magazines, 2012 U.S. App. LEXIS 16947 (9th Cir. Aug. 14, 2012) takes a narrow view of the scope of fair use. Compared to the district court, the majority takes a stronger view on the right of first publication and a less generous view on the significance of news reporting:

“The tantalizing and even newsworthy interest in the photos does not trump a balancing of the fair use factors”

The majority dismissed the defendant’s claim to transformative use and distinguished the similar case of Núñez on the basis that in Núñez “the pictures were the story, and the newspaper in Núñez did not seek to manufacture newsworthiness, nor did it scoop the story.” The majority suggested that whereas one photo as evidence of the event may have been fair use, publishing six “undoubtedly supplanted Plaintiffs’ right to control the first public appearance of the photographs.”

The dissent saw matters a little differently:

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. 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.

One Reply to “Is Fair Use a Viable Defense for Stolen Photos?”

  1. It is not really salient to the case, but I was pleased to see the following in the decision: “Fair use is a central component of American copyright law. Although its roots, like copyright law itself, may be traced to English courts” citing to Matthew Sag, The Prehistory of Fair Use, 76 Brook. L. Rev. 1371, 1372-73 (2011).

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