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Monge v. Maya Magazines, Inc. - 688 F.3d 1164 (9th Cir. 2012)


Courts are directed to determine fair use on the basis of the following non-exclusive factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C.S. § 107. In 1992, Congress amended the fair use section to address the status of unpublished works: The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.


Plaintiffs Noelia Lorenzo Monge and Jorge Reynoso, Latin American celebrities, had kept their marriage a secret even from their family. They had private photos taken with Jorge’s own camera during their wedding and later that night in their nuptial garb. More than a year later, a paparazzo claimed after Noelia used his vehicle, he found left a memory chip in it containing more than 1400 photos. The paparazzo first tried use the photos to extort money from Noelia and Jorge, but then sold them to defendants Maya Magazines, Inc. and Maya Publishing Group, LLC (Maya), who published only six of the photos. Plaintiffs claimed that Maya infringed their copyrights by publishing previously unpublished photos of their clandestine wedding in "TVNotas," a Spanish-language celebrity gossip magazine.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. 


Was the publication of the images fair use under the Copyright Act of 1976?




Inter alia, the appellate court held that the balancing of the fair use factors had to be weighed against Maya’s burden to establish fair use. Without a single factor tipping in its favor, Maya did not sustain its burden of establishing that its wholesale, commercial use of the previously unpublished photos constituted fair use. The tantalizing and even newsworthy interest in the photos did not trump a balancing of the fair use factors. Because the affirmative defense of fair use failed as a matter of law, the district court erred by granting summary judgment in favor of Maya on that basis. Instead, the district court should have granted plaintiffs' motion for summary judgment.

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