NOELIA MONGE V. MAYA MAGAZINES, INC. - Ninth Circuit Court of ...
NOELIA MONGE V. MAYA MAGAZINES, INC. - Ninth Circuit Court of ...
NOELIA MONGE V. MAYA MAGAZINES, INC. - Ninth Circuit Court of ...
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9192 <strong>MONGE</strong> v. <strong>MAYA</strong> <strong>MAGAZINES</strong>, <strong>INC</strong>.<br />
v. Nation Enterprises still apply.” H.R. Rep. No. 102-286, at<br />
9 (1992), reprinted in 1992 U.S.C.C.A.N. 2553, 2561. The<br />
Senate confirmed the vitality <strong>of</strong> Harper & Row: “we intend<br />
to roll back the virtual per se rule <strong>of</strong> Salinger and New Era,<br />
but we do not mean to depart from Harper & Row.” S. Rep.<br />
No. 102-141, at 5-6 (1991).<br />
[12] We are unable to discern anything extraordinary about<br />
the situation here, and agree with the district court that<br />
Maya’s “publication undoubtedly supplanted Plaintiffs’ right<br />
to control the first public appearance <strong>of</strong> the photographs.”<br />
Contra Núñez, 235 F.3d at 23 (“[Defendant] did not aim to<br />
use the photographs to compete with Núñez, nor to supplement<br />
his right <strong>of</strong> first production”). This finding further distinguishes<br />
Núñez, where the works were hardly confidential<br />
or secret and “had already been distributed” when the<br />
infringement occurred. Id. at 21, 23. In contrast, Maya’s headlines<br />
bragged about its exclusive photo spread <strong>of</strong> never before<br />
seen images.<br />
[13] In analyzing the second factor, the nature <strong>of</strong> the work,<br />
we balance the copyright protection received by marginally<br />
creative works with the Supreme <strong>Court</strong>’s clear recognition<br />
that the unpublished status <strong>of</strong> the work is a “critical element.”<br />
These aspects counter-balance each other, and because the<br />
case is not exceptional, we apply the Supreme <strong>Court</strong>’s admonition<br />
that with respect to unpublished works, this factor “outweighs”<br />
Maya’s claim <strong>of</strong> fair use. See Harper & Row, 471<br />
U.S. at 555.<br />
C. AMOUNT AND SUBSTANTIALITY OF THE PORTION USED<br />
[14] The third statutory factor in the fair use analysis is<br />
“the amount and substantiality <strong>of</strong> the portion used in relation<br />
to the copyrighted work as a whole.” 17 U.S.C. § 107(3). We<br />
examine both the quantitative and qualitative aspects <strong>of</strong> the<br />
portion <strong>of</strong> the copyrighted material taken. Campbell, 510 U.S.<br />
at 586. Quantitatively, every single photo <strong>of</strong> the wedding and