NOELIA MONGE V. MAYA MAGAZINES, INC. - Ninth Circuit Court of ...

9194 MONGE v. MAYA MAGAZINES, INC.
four hundred images and three videos from Viqueira’s stolen
memory chip, only six of the pictures were related to the night
of the wedding. Maya, which is in possession of the images,
did not produce any of the other images or offer any details
as to the remaining content in this assortment. The district
court’s statement—that “400 photographs of plaintiffs’ wedding”
were purchased—was in error.
This error was not inconsequential. Benchmarking the use
of six images against a vast collection that the court perceived
to be other wedding photos tainted the district court’s lens on
the situation. The facts are to the contrary—a limited number
of private photos were taken on Monge’s camera on the wedding
day and Maya published six of those images. To suggest
that this usage should be compared to a universe of four hundred
other unidentified images and videos that happened to be
located on the storage device makes little sense. It would be
akin to taking a random collection of copyrighted materials
from someone’s trash can and using the stack as the universe
of copyrighted work, using a memory stick to copy random
photos from various computer files, or randomly downloading
hundreds of unrelated copyrighted images from the Internet
and thereafter claiming that the infringing use was insubstantial
simply because only a few images from this “compilation”
were published. Maya’s acquisition of a random
collection of unidentified, non-wedding related images and
videos does not bear on the fair use analysis here, the district
court’s analysis notwithstanding.
The dissent does not explain why the only work at issue is
the purported “compilation” or “collection” bought by Maya.
More disconcerting is that the dissent’s characterization of the
four hundred photos as a “compilation” misapprehends the
meaning of this term in the copyright law. A “compilation” is
defined as “a work formed by the collection and assembling
of preexisting materials or of data that are selected, coordinated,
or arranged in such a way that the resulting work as
a whole constitutes an original work of authorship. The term