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 infringement.
    • El Vocero argued that they were protected by the fair use provision (17 U.S.C. 107) because they were reporting the news.
  • 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 copyrighted work.
        • 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 work used.
        • 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 market.
        • 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.