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Fair use is a mixed question of law and fact. When a district court has found sufficient facts to evaluate each of the statutory factors, the appellate court need not remand but may determine fair use as a matter of law. Although the factors enumerated by Congress in 17 U.S.C.S. § 107 are not meant to be exclusive, they are especially relevant to the overall fair use inquiry. The appellate court thus examines 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.
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. 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.
Was the reproduction of independently newsworthy photographs without permission 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?
The court affirmed the decision. Three of the four factors in the fair use inquiry favored a finding of fair use, and the remaining factor was not relevant. A fair use existed because the photographs were particularly newsworthy, defendant acquired the photographs in good faith, and the photographs had already been disseminated.