Tag Archives: publishing

9th Circuit ruling could limit publication of private celebrity photos, videos, sex tapes.

Treacherous waters ahead for news mediaPapparazzi through blinds

Things just got more treacherous for publishers and news organizations to run private photographs and videos of celebrities.    This week, the 9th Circuit Court of Appeals issued a ruling in Monge v. Maya Magazines  in which it addressed the question of whether a tabloid magazine  had the right under the “Fair Use” provisions of U.S. Copyright law, to publish stolen photographs of a secret wedding between two celebrities.

A sticky copyright issue

This is one of the stickiest issues in copyright law, and the Court's ruling that the magazine did not have such rights strikes a blow to the common business practice of tabloids and tv gossip shows buying photos and footage of celebrities without regard for how those items were obtained.

Monge v. Maya Magazines   involved photos of the secret wedding between Latina singer and model Noelia Lorenzo Monge and her manager/producer Jorge Reynoso.  The wedding took place in 2007, and was kept secret (even from the couple's families) for 2 years before an acquaintance  of the couple found the photos (taken by a witness at the Las Vegas wedding, using Reynoso's camera).  That acquaintance sold the photos to Maya for $1,500 allegedly after attempts  to extort the couple proved fruitless.  

The photos were registered with the U.S. Copyright office in the couple's name, and the suit followed.

The Court Rulings

The lower court  threw out the case on fair use grounds, but the appeals court has now ruled otherwise, pointing out that newsworthiness is but a single factor in the fair use analysis, and finding that the other factors weighed more heavily against a finding of fair use.  Since the photos were used in their entirety, for commercial purposes, and were not “transformed” in a meaningful way by the defendant publication, the Appeals court held that  the case for infringement may proceed.

Fair Use is a defense to copyright infringement cases based on the First Amendment's guarantee of freedom of speech and press, but it's not absolute.  

Ammunition for celebrities

The potential ramifications of this ruling are far-reaching.  In recent years numerous incidences of private photos and videos (including more than a few sex-tapes) featuring celebrities have been brought to light under circumstances similar to this case.   Monge gives celebrities a new weapon in fighting publication of such materials. Now, news organizations, tabloids, TV gossip shows and websites will need to more carefully examine the pedigree and ownership of the material they purchase and publish.    The Fair Use analysis just got trickier for journalists, editors and publishers.  Even the major news media will have to consider more carefully whether certain material they publish really is  defensible as  fair use.  Damages for copyright infringement can be significant, and courts can issue injunctions against publication, or  order infringing material taken down from websites.

Unanswered Questions about copyright ownership

I. however, am  a little bit puzzled by unanswered questions regarding ownership of the photos.  Ordinarily, unless the person is an employee, or under a work-for hire contract, a photographer owns the copyright in photos he or she takes, regardless whose equipment is used,.  So, I'm wondering how the couple was able to claim ownership.  The Courts' opinion does not address this question, and the existence of a registration is prima-facie evidence of ownership.  

Reflections on the fate of the music business as we know it.

A panel I attended recently at the Recording Academy addressed digital music, particularly the problems songwriters (and record labels, artists, etc.) have getting paid for their music, particularly in the face of file-sharers obtaining copies for free.

A vocal majority on the panel, and in the audience seemed to take the position that the only solution is to require Internet Service Providers to charge their users a monthly digital media consumption fee of some sort. This, it seems, part of the idea behind CHORUSS, a pilot program at a few universities, which requires students to opt-in by paying a monthly fee, that the University will then pass along to content owners.

For me, this solution is plagued with problems. First, in all likelihood, if implemented on a broad scale, it will be an automatic charge we all pay. Those who never file-share or download media content will be subsidizing the users who DO download, especially those who take more than their fair share. Second, this looks to the wrong party for payment. Isn’t asking ISPs to pay music royalties when songs pass through their networks similar to asking UPS to pay book authors’ royalties when they deliver books bought via Amazon.com?

Now, of course no solution to this problem is perfect, but it’s my sincere hope that the content community and the tech communities can find a better solution. Unfortunately, other solutions discussed involved asking ISPs to log every bit of data passing through every user’s IP address… which raises tremendous privacy concerns.

One interesting view was that espoused by a manager/consultant on the panel who seemed to suggest that we just need to accept that file-sharing is here, and that many (but not all) consumers are getting (music) for free… so we’d better find something else to sell them. (Sounds like a ‘loss-leader’ approach). ‘Give away the recordings of your songs… develop a fan base, then sell ‘em concert tickets and T-shirts’… seemed to be his notion.

Clearly, there’s no good solution, but the prevailing view of the panel is that something must be done. If artists such as songwriters can no longer receive fair compensation for their efforts.. they’ll find something else to do… and society will be the worse for it.

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