Nunez v. Caribbean Int'l News Corp. (El Vocero de Puerto Rico)
235 F.3d 18 (1st Cir. 2000)
Nunez took some nude photos of
Giraud, who went on to become Miss Puerto Rico. After a controversy over
whether the photos were appropriate for a beauty pageant contestant arose,
a local newspaper, El Vocero, reprinted the photos, along with news
stories about the controversy.
Nunez sued for copyright
El Vocero argued that they
were protected by the fair use
provision (17 U.S.C. §107) because they were reporting the
The Trial Court found for El
Vocero. Nunez appealed.
The Appellate Court affirmed.
The Appellate Court found
that based on §107 there is a
four-factor test for determining if something counts as fair use:
Is the purpose and character
of the use commercial or non-commercial?
The Court found that there
was newsworthiness to the photos. However El Vocero was printing them
mostly to titillate readers and sell more newspapers, so this factor
didn't fall squarely for or against fair use.
The nature of the
The Court found that Nunez
had already published the photos and had not registered the copyright
or sought to control dissemination. That goes in favor of El Vocero.
The amount of the original
The Court found that El
Vocero used the whole photo, but they couldn't have reasonably used any
less, so this factor didn't fall squarely for or against fair use.
The effect on the potential
The Court found that
consumers who might have bought Nunez' photography were unlikely to be
dissuaded by seeing the photos poorly reproduced in a newspaper. If
anything, the publicity would increase demand for Nunez's work. That
goes in favor of El Vocero.
Based on their balancing of
the four factors, the Court found that El Vocero's use of the photos was
covered under fair use.