                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

NOELIA LORENZO MONGE, an                
individual; JORGE REYNOSO, an
individual,
               Plaintiffs-Appellants,
                                              No. 10-56710
                 v.
                                                D.C. No.
MAYA MAGAZINES, INC., a Florida             2:09-cv-05077-R-SS
Corporation; MAYA PUBLISHING
GROUP, LLC, a Florida Limited
Liability Company,
             Defendants-Appellees.
                                        

NOELIA LORENZO MONGE, an                
individual; JORGE REYNOSO, an
individual,
               Plaintiffs-Appellants,          No. 11-55483
                 v.
                                                D.C. No.
                                            2:09-cv-05077-R-SS
MAYA MAGAZINES, INC., a Florida
Corporation; MAYA PUBLISHING                     OPINION
GROUP, LLC, a Florida Limited
Liability Company,
              Defendants-Appellees.
                                        
        Appeal from the United States District Court
           for the Central District of California
         Manuel L. Real, District Judge, Presiding

                   Argued and Submitted
          February 6, 2012—San Diego, California

                    Filed August 14, 2012

                             9169
9170             MONGE v. MAYA MAGAZINES, INC.
  Before: M. Margaret McKeown and Milan D. Smith, Jr.,
          Circuit Judges, and Rudi M. Brewster,
                  Senior District Judge.*

                  Opinion by Judge McKeown;
                   Dissent by Judge M. Smith




  *The Honorable Rudi M. Brewster, Senior District Judge for the South-
ern District of California, sitting by designation.
               MONGE v. MAYA MAGAZINES, INC.            9173




                        COUNSEL

Michael D. Kuznetsky (argued), Kuznetsky Law Group, P.C.,
Universal City, California, for the plaintiffs-appellants.

D. Fernando Bobadilla (argued), The Bobadilla Law Firm,
Miami, Florida; Angela C. Agrusa and Allen P. Lohse, Liner
Grode Stein Yankelevitz Sunshine Regenstreif & Taylor LLP,
Los Angeles, California, for the defendants-appellees.


                         OPINION

McKEOWN, Circuit Judge:

   This appeal reads like a telenovela, a Spanish soap opera.
It pits music celebrities, who make money by promoting
9174             MONGE v. MAYA MAGAZINES, INC.
themselves, against a gossip magazine, that makes money by
publishing celebrity photographs, with a paparazzo, who
apparently stole the disputed pictures, stuck in the middle.
Noelia Lorenzo Monge and Jorge Reynoso (“the couple”),
Latin American celebrities, claim that Maya Magazines, Inc.
and Maya Publishing Group, LLC (collectively “Maya” or
“the magazine”) infringed their copyrights by publishing pre-
viously unpublished photos of their clandestine wedding in
“TVNotas,” a Spanish-language celebrity gossip magazine.
The district court granted Maya summary judgment on the
ground that publication of the images was fair use under the
Copyright Act of 1976. We disagree and reverse. The tantaliz-
ing and even newsworthy interest in the photos does not
trump a balancing of the fair use factors. Simply put, Maya
did not sustain its burden of establishing that its wholesale,
commercial use of the previously unpublished photos consti-
tuted fair use.

           FACTUAL AND PROCEDURAL BACKGROUND

I.    THE CAST

   Noelia Lorenzo Monge is a pop singer and model. Jorge
Reynoso is her manager and husband, and a music producer.
Oscar Viqueira is a paparazzo who occasionally worked as a
driver and bodyguard for the couple during their visits to
Miami. Maya publishes multiple magazines, including the
celebrity gossip magazine “TVNotas.” In the past, Maya has
paid Monge to pose for pictures published in its magazine, “H
Para Hombres.” Reynoso was paid $25,000 for photos of his
wedding to his former wife Pilar Montenegro, as well as
$40,000 for photos of his vacation in Paris with Montenegro.

II.    THE SET

  Monge and Reynoso were married at the “Little White
Wedding Chapel” in Las Vegas, Nevada on January 3, 2007.
Valuing their privacy, and Monge’s image as a young, single
                  MONGE v. MAYA MAGAZINES, INC.                    9175
pop singer, the couple went to great lengths to keep the wed-
ding a secret: only the minister and two chapel employees
witnessed the ceremony. Using Monge’s camera, chapel
employees took three photos of the wedding; later that night
at least three more photos of Monge and Reynoso in their
nuptial garb were also taken. The pictures were intended for
the couple’s private use. For two years Monge and Reynoso
succeeded in keeping their wedding a secret, even from their
families.

   In the summer of 2008, Reynoso used Viqueira’s sport util-
ity vehicle. Viqueira claims that after Reynoso returned the
car, Viqueira found a memory chip in the ashtray. When
Viqueira looked at the files on the memory chip, he found the
photos of the couple’s secret wedding, along with an assort-
ment of other photos and videos. Viqueira tried to capitalize
on the files to extort money he claimed Reynoso owed him.
When this plan failed, in February 2009, Viqueira sold to
Maya all of the electronic files he had taken “to recuperate the
payment for [his] work.” The price was $1,500. The couple
testified, and Maya does not contest, that Viqueira did not
have permission to take or sell any of the images on the mem-
ory chip.

III.   THE DRAMA

   Reynoso received a phone call from his mother in February
2009, berating him for getting married without telling her.
Intent on secrecy, Reynoso denied the marriage to his own
mother, but to no avail: She had already seen the wedding
photos in a gossip magazine. Maya had published six of the
stolen photos—three of the wedding ceremony and three of
the wedding night—in Issue 633 of TVNotas. Prior to Issue
633, the photos were unpublished. The headline on the front
cover of the magazine stated: “The Secret Wedding of Noelia
and Jorge Reynoso in Las Vegas.”1 The byline stated: “We
  1
   The record contains English translations of the statements made in the
Spanish-language magazine.
9176           MONGE v. MAYA MAGAZINES, INC.
even have photos of their first night as a married couple!”
This text was positioned beside the wedding photo on the
cover. Three photos were reproduced on the cover: one show-
ing Monge lying on a bed revealing her underwear; one of
Reynoso smoking a cigar in front of a neon Playboy logo; and
one depicting the newly-married couple.

  Inside the magazine, the photos were featured over a two-
page spread. “Apparently, the couple married in Las Vegas in
January 2007!” was written on the top of the spread. “First
and exclusive photos of the secret wedding of Noelia and
Jorge Reynoso” was also printed in large font on the spread.

   The left side of the spread was comprised of one large wed-
ding photo, a reprint from the cover. Printed on top of this
photo was: “Only in TVNotas”; and the caption read: “In fact,
a lot has been said about a supposedly secret wedding in Las
Vegas, Nevada, that took place in January 2007, but until
now, no one had shown photos of that memorable day.
TVNotas got a hold of those photos and shows them to you
now, exclusively.”

  The right side of the spread was comprised of four photos.
The photos showed the couple next to a priest, kissing in wed-
ding attire, and at a bar. The picture of Monge on a bed with
her underwear showing, also published on the cover, was
repeated. The footer of this page stated: “Although the couple
has declined to confirm their marriage, these photos that we
got speak for themselves.”

   These six images were the only ones Maya published from
the assortment of approximately four hundred images and
three videos obtained from Viqueira. Maya did not publish
other supporting evidence such as a marriage certificate,
choosing instead to rely solely on the sensational photos. The
couple claims that the three wedding photos published com-
prise every wedding photo taken, and that the three photos of
the wedding night comprise almost every photo of the wed-
                  MONGE v. MAYA MAGAZINES, INC.                       9177
ding night. Maya does not challenge either contention. Nor is
there any dispute that Maya generated revenue from sales of
Issue 633. Maya also admits that, in the past, it has paid for
exclusive rights to publish pictures of celebrity weddings,
including other celebrity weddings depicted in Issue 633.

IV.    THE COURT PROCEEDINGS

   Soon after publication of the pictures, the couple registered
copyrights in five of the six published photos—all the pub-
lished pictures, except the one where the couple appears
together in front of a Playboy logo.2 Monge and Reynoso then
filed a complaint against Maya asserting claims for copyright
infringement, statutory misappropriation of likeness, and
common law misappropriation of likeness.

   The district court dismissed the misappropriation of like-
ness claims and struck the couple’s claims for statutory dam-
ages under the Copyright Act. The parties filed cross-motions
for summary judgment. The district court granted Maya’s
motion for summary judgment based on fair use under 17
U.S.C. § 107, and also granted Maya’s motion for attorney’s
fees and costs.

                                ANALYSIS

   The sole issue on appeal is whether the district court prop-
erly granted summary judgment in favor of Maya predicated
on the fair use doctrine. We review de novo the district
   2
     Because only fair use is at issue, we assume the legitimacy of the cou-
ple’s copyright in each of the five photos for which they provided copy-
right registrations. See 17 U.S.C. § 410(c) (registration serves as prima
facie evidence of validity); id. § 411(a) (federal registration is required
before bringing an infringement action). We express no opinion as to the
ownership of copyright regarding the sixth photo nor do we express an
opinion as to the ultimate copyright status of any of the photos. See United
Fabrics Int’l, Inc. v. C & J Wear, Inc., 630 F.3d 1255 (9th Cir. 2011).
9178              MONGE v. MAYA MAGAZINES, INC.
court’s finding of fair use, a mixed question of law and fact.
Kelly v. Arriba Soft Corp., 336 F.3d 811, 817 (9th Cir. 2003).

I.       THE FAIR USE DOCTRINE

   The fair use doctrine has been called “the most troublesome
in the whole law of copyright.” Dellar v. Samuel Goldwyn,
Inc., 104 F.2d 661, 662 (2d Cir. 1939) (per curiam). This
affirmative defense presumes that unauthorized copying has
occurred, and is instead aimed at whether the defendant’s use
was fair. As with all affirmative defenses, Maya as the defen-
dant bears the burden of proof. See Harper & Row, Publish-
ers, Inc. v. Nation Enters., 471 U.S. 539, 561 (1985). Despite
its claim that it purchased the photos in good faith, “the inno-
cent intent of the defendant constitutes no defense to liabili-
ty.” 4 Melville B. Nimmer & David Nimmer, Nimmer on
Copyright § 13.08[B][1] (Matthew Bender rev. ed. 2011)
(footnote omitted).

   Fair use is a central component of American copyright law.
Although its roots, like copyright law itself, may be traced to
English courts,3 the doctrine first took hold in this country in
Justice Story’s opinion in Folsom v. Marsh, 9 F. Cas. 342
(No. 4901) (C.C.D. Mass. 1841). He wrote that “a fair and
bona fide abridgement of an original work[ ] is not a piracy
of the copyright of the author.” Id. at 345. Foreshadowing
future commentary on fair use, Justice Story noted that “what
constitutes a fair and bona fide abridgement, in the sense of
the law, is one of the most difficult points, under particular
circumstances, which can well arise for judicial discussion.”
Id. Justice Story characterized copyright cases as approaching
“the metaphysics of the law, where the distinctions are, or at
least may be, very subtle and refined, and, sometimes, almost
evanescent.” Id. at 344.
     3
   Matthew Sag, The Prehistory of Fair Use, 76 BROOK. L. REV. 1371,
1372-73 (2011).
                 MONGE v. MAYA MAGAZINES, INC.                   9179
   [1] Fair use became more concrete when it was codified in
the Copyright Act of 1976: “[T]he fair use of a copyrighted
work . . . for purposes such as criticism, comment, news
reporting, teaching . . . , scholarship, or research, is not an
infringement of copyright.” 17 U.S.C. § 107. Courts are
directed to determine fair use on the basis of the following
non-exclusive factors:

        (1) the purpose and character of the use, including
      whether such use is of a commercial nature or is for
      nonprofit educational purposes;

        (2) the nature of the copyrighted work;

        (3) the amount and substantiality of the portion
      used in relation to the copyrighted work as a whole;
      and

         (4) the effect of the use upon the potential market
      for or value of the copyrighted work.

Id. In 1992, Congress amended the fair use section to address
the status of unpublished works: “The fact that a work is
unpublished shall not itself bar a finding of fair use if such
finding is made upon consideration of all the above factors.”
Id.

   In the years following the 1976 Act, courts have decided
countless cases involving the fair use doctrine. Some com-
mentators have criticized the factors, labeling them “billowing
white goo”4 or “naught but a fairy tale,”5 echoing courts that
threw up their hands because the doctrine is “so flexible as
virtually to defy definition.” Princeton Univ. Press v. Mich.
  4
    Jessica Litman, Billowing White Goo, 31 COLUM. J.L. & ARTS 587, 596
(2008).
  5
    David Nimmer, “Fairest of Them All” & Other Fairy Tales of Fair
Use, 66 LAW & CONTEMP. PROBS. 263, 287 (2003).
9180            MONGE v. MAYA MAGAZINES, INC.
Doc. Servs., Inc., 99 F.3d 1381, 1392 (6th Cir. 1996) (citation
omitted). A leading treatise in this area notes that the statute
provides “no guidance as to the relative weight to be ascribed
to each of the listed factors,” and, in the end, “courts are left
with almost complete discretion in determining whether any
given factor is present in any particular use.” Nimmer on
Copyright § 13.05[A] (footnotes omitted).

   We acknowledge the porous nature of the factors but none-
theless recognize that we are obliged to make sense of the
doctrine and its predicates. Over time, there has been a shift
in analytical emphasis in the fair use factors, in large part due
to several key Supreme Court cases. The relative importance
of factor one—“the purpose and character” of the use—and
factor four—“the effect of the use upon the potential market”
—has dominated the case law. Because these factors are also
significant here, we take the time to discuss the recent evolu-
tion of the doctrine. Two key Supreme Court cases guide our
analysis: Harper & Row, Publishers, Inc. v. Nation Enters.,
471 U.S. 539 (1985), and Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994).

   Harper & Row is particularly instructive because it
involved the unpublished memoirs of a public figure, Presi-
dent Ford. Just before Time Magazine was scheduled to pub-
lish excerpts from President Ford’s forthcoming book, The
Nation magazine published an article that included, from an
unauthorized source, verbatim quotations from the book. The
Court held that “use of the[ ] verbatim excerpts from the
unpublished manuscript was not a fair use.” 471 U.S. at 569.

   In discussing the fair use factors, the Court illuminated sev-
eral points that bear on this case. Commenting on the public
interest issue, the Court faulted the court of appeals for “con-
cluding that The Nation’s use of the copyrighted material was
excused by the public’s interest in the subject matter.” Id. In
that vein the Court admonished:
                MONGE v. MAYA MAGAZINES, INC.                  9181
       It is fundamentally at odds with the scheme of
    copyright to accord lesser rights in those works that
    are of greatest importance to the public. . . . [W]e see
    no warrant for expanding the doctrine of fair use to
    create what amounts to a public figure exception to
    copyright.

Id. at 559-60. Similar to our case, the confidentiality of the
unpublished works was central in Harper & Row. Brushing
aside The Nation’s effort to sidestep liability, the Court wrote
that “[a] use that so clearly infringes the copyright holder’s
interests in confidentiality and creative control is difficult to
characterize as ‘fair.’ ” Id. at 564.

   Echoing its then-recent decision in Sony Corp. of Am. v.
Universal City Studios, Inc., 464 U.S. 417 (1984), superseded
on other grounds by statute, 17 U.S.C. § 1201, the Court syn-
thesized the fourth factor, the effect on the potential market
as “undoubtedly the single most important element of fair
use.” Harper & Row, 471 U.S. at 566. In its conclusion, the
Court cautioned as follows: “Congress has not designed, and
we see no warrant for judicially imposing, a ‘compulsory
license’ permitting unfettered access to the unpublished copy-
righted expression of public figures.” Id. at 569. In other
words, the Court did not give a fair use free pass to news
reporting on public figures, nor did it embrace the notion that
the unpublished nature of the work is without consequence.

   Almost ten years later, the Court returned to the fair use
doctrine in Campbell, 510 U.S. 569. The case arose in the
context of a parody by 2 Live Crew of the Roy Orbison and
William Dees song “Oh, Pretty Woman.” The Court
addressed the first factor and highlighted “that the commercial
or nonprofit educational purpose of a work is only one ele-
ment of the first factor enquiry . . . .” Id. at 584. It debunked
the notion that Sony called for a “hard evidentiary presump-
tion” that commercial use is presumptively unfair. Id. Instead,
the Court harkened back to its explanation in Harper v. Row
9182             MONGE v. MAYA MAGAZINES, INC.
that commercial use “tends to weigh against a finding of fair
use,” and said “[b]ut that is all.” Id. at 585 (internal quotation
marks omitted).

   The Court also clarified the role of the fourth factor, market
harm, and criticized reliance on Sony to support a presump-
tion of market harm in the event of transformative commer-
cial use. It noted that “Sony’s discussion of a presumption
contrasts a context of verbatim copying of the original in its
entirety for commercial purposes, with the noncommercial
context of Sony itself (home copying of television program-
ming).” Id. at 591. Of course, commercial use may tip the
scale toward market harm, but like the other factors, it “may
be addressed only through a ‘sensitive balancing of inter-
ests.’ ” Id. at 590 n.21 (citation omitted).

  Against this backdrop, we address the four fair use factors.

II.    FAIR USE FACTORS

  A.       PURPOSE AND CHARACTER OF THE USE

   The first factor includes three principles that simulta-
neously complement and yet are in tension with one another
in this case: news reporting; transformation; and commercial
use.

      1.    News Reporting

   The preamble to the fair use statute lists “news reporting”
as an illustrative basis supporting fair use under this factor. 17
U.S.C. § 107. We have little doubt that the gossip magazine’s
sensational coverage of the wedding qualifies as news report-
ing. Our role in this regard is not as a literary critic. Campbell,
510 U.S. at 582 (whether “in good taste or bad does not and
should not matter to fair use”). While the parties agree that the
pictures at issue are newsworthy, we must nevertheless pro-
ceed cautiously because “[t]he promise of copyright would be
                   MONGE v. MAYA MAGAZINES, INC.                       9183
an empty one if it could be avoided merely by dubbing the
infringement a fair use ‘news report’ of the [work].” Harper
& Row, 471 U.S. at 557.

   [2] Although news reporting is an example of fair use, it
is not sufficient itself to sustain a per se finding of fair use.
The “fact that an article arguably is ‘news’ and therefore a
productive use is simply one factor in a fair use analysis.” Id.
at 561. In other words, fair use has bounds even in news
reporting, and no per se “public interest” exception exists.
See, e.g., Murphy v. Millennium Radio Grp. LLC, 650 F.3d
295, 307 (3d Cir. 2011) (“[N]ews reporting does not enjoy a
blanket exemption from copyright. News organizations are
not free to use any and all copyrighted works without the per-
mission of the creator simply because they wish to report on
the same events a work depicts.”); Núñez v. Caribbean Int’l
News Corp., 235 F.3d 18, 22 (1st Cir. 2000) (allowing publi-
cation of three pictures for news purposes, but clarifying that
“[t]his is not to say that . . . use of the photographs was neces-
sarily fair merely because the photographs were used for news
purposes, nor does it establish a general ‘newsworthiness’
exception.”). Because Maya cannot simply take fair use ref-
uge under the umbrella of news reporting, we analyze Maya’s
coverage in light of two other considerations: the degree of
transformation occasioned by Maya’s use; and the commer-
cial nature of its use.6
  6
    In evaluating the “purpose and character” factor, we apply “the general
rule that a party claiming fair use must act in a manner generally compati-
ble with principles of good faith and fair dealing.” Perfect 10, Inc. v. Ama-
zon.com, Inc., 508 F.3d 1146, 1164 n.8 (9th Cir. 2007) (citing Harper &
Row, 471 U.S. at 562-63). The couple claims that the magazine acted in
bad faith by failing to: seek permission from them; confirm that the copy-
rights in the images belonged to Viqueira; and seek any documentation as
to ownership. Maya presents evidence, however, that it procured a written
copyright assignment from Viqueira, and argues that it had no reason to
believe that the known paparazzo did not have rights to the photos. While
the couple’s arguments may call into question Maya’s good faith, Maya’s
actions do “not amount to an abuse of the good faith and fair dealing
underpinnings of the fair use doctrine.” Id. Application of the defense is
not foreclosed.
9184           MONGE v. MAYA MAGAZINES, INC.
    2.   Transformation

   [3] Transformation is a judicially-created consideration
that does not appear in the text of the statute. According to
Campbell:

    The central purpose of this investigation is to see, in
    Justice Story’s words, whether the new work merely
    “supercede[s] the objects” of the original creation, or
    instead adds something new, with a further purpose
    or different character, altering the first with new
    expression, meaning, or message; it asks, in other
    words, whether and to what extent the new work is
    “transformative.”

510 U.S. at 579 (citations and quotation marks omitted).
“[T]he more transformative the new work, the less will be the
significance of other factors, like commercialism, that may
weigh against a finding of fair use.” Id.

   Transformation in the news reporting context has been liti-
gated repeatedly in our circuit, often involving the Los Ange-
les News Service. In L.A. News Serv. v. Reuters Television
Int’l, we stated that despite the newsworthiness of the videos
at issue, which documented a beating during a riot in Los
Angeles, their mere rebroadcast was not in itself transforma-
tive: “Although [Reuters’s] service does have a news report-
ing purpose, its use of the works was not very transformative.
Reuters copies footage and transmits it to news reporting
organizations; Reuters does not explain the footage, edit the
content of the footage, or include editorial comment.” 149
F.3d 987, 993 (9th Cir. 1998). Similarly, a news station’s
broadcast of an extraordinarily timely news segment concern-
ing ongoing riots related to the Rodney King beating was held
unfair: Even though the news station “apparently ran its own
voice-over, it does not appear to have added anything new or
transformative to what made the [ ] work valuable — a clear,
visual recording of the beating itself.” L.A. News Serv. v.
               MONGE v. MAYA MAGAZINES, INC.                 9185
KCAL-TV Channel 9, 108 F.3d 1119, 1122 (9th Cir. 1997).
Minor changes, such as placing “voice-overs” on video clips,
do not “necessarily transform a work.” Elvis Presley Enters.,
Inc. v. Passport Video, 349 F.3d 622, 628-29 (9th Cir. 2003),
overruled on other grounds as stated in Flexible Lifeline Sys.,
Inc. v. Precision Lift, Inc., 654 F.3d 989, 995 (9th Cir. 2011)
(per curiam).

   Arrangement of a work in a photo montage, however, can
be transformative where copyrighted material is incorporated
into other material. For example, the use of a brief segment
of a riot clip in a promotional video was deemed to be fair
use. L.A. News Serv. v. CBS Broad., Inc., 305 F.3d 924 (9th
Cir. 2002), as amended, 313 F.3d 1093. Nonetheless,
“[m]erely plucking the most visually arresting excerpt from
[ ] nine minutes of footage cannot be said” to be transforma-
tive, but

    inclusion of the clip in the video montage that intro-
    duced the Prime Time Justice program, following
    editing for dramatic effect, has a better claim to be
    within the scope of “transformation.” The develop-
    ment of the montage at least plausibly incorporates
    the element of creativity beyond mere republication,
    and it serves some purpose beyond newsworthiness.

Id. at 939; see also Murphy, 650 F.3d at 306 (disallowing
copying of unaltered image because there was “no meaningful
distinction between the purpose and character” of the cre-
ator’s use and the infringer’s use of reporting news).

  [4] The pictures here are a “clear, visual recording” of the
couple’s wedding and wedding night. KCAL-TV Channel 9,
108 F.3d at 1122. Because publication of photographic evi-
dence that constitutes proof of a newsworthy event is not
automatically fair use, we turn to the degree to which Maya’s
use transformed the works. Each of the individual images was
reproduced essentially in its entirety; neither minor cropping
9186              MONGE v. MAYA MAGAZINES, INC.
nor the inclusion of headlines or captions transformed the
copyrighted works. The reasoning regarding voice-overs from
Elvis Presley Enterprises applies with equal vigor to head-
lines and captions over still images. 349 F.3d at 628-29.

   The individual images were marginally transformed, how-
ever, in other ways. The text and article accompanying the
photos, as well as their arrangement in a photo montage, may
give the pictures “a further purpose.” CBS Broad., Inc., 305
F.3d at 938 (citation and quotation marks omitted). Campbell
makes clear that the “heart” of a claim for transformative use
is “the use of some elements of a prior author’s composition
to create a new one that, at least in part, comments on that
author’s works.” 510 U.S. at 580. Of course, in Campbell, the
question related to parody, a direct comment aimed at the
original song. The dissent’s vivid description of the copy-
righted photos does not undermine the conclusion that there
was no real transformation of the photos themselves. Nor can
it be said, as in Campbell, that Maya created a new work
based on the photos.

   Even if the photos were not physically or creatively trans-
formed, Maya claims that publication of the photos as an
exposé amounted to transformation. In other words, Maya’s
publication transformed the photos from their original
purpose—images of a wedding night—into newsworthy evi-
dence of a clandestine marriage.7 In support, Maya relies
heavily on Núñez, a First Circuit case that is distinguishable.
235 F.3d 18. In Núñez, a photographer sued a newspaper that
published his copyrighted images of a woman that had won
the title of “Miss Universe Puerto Rico.” Id. at 21. In at least
  7
   While the couple undisputedly kept the wedding a secret, contrary to
the dissent’s assertion, the record contains no evidence that the couple
made affirmative representations about their marital status. There is no
evidence that the couple repeatedly denied their marriage or made other
public statements to the contrary. The district court erred in making such
factual findings and likewise erred in inferring such representations during
the summary judgment proceeding.
                  MONGE v. MAYA MAGAZINES, INC.                       9187
one photo, the woman appeared naked or nearly naked. After
a local television station displayed the risqué photographs, the
model was interviewed about “her fitness to retain the Miss
Universe Puerto Rico crown.” Id. Soon after, a local newspa-
per published the photographs without permission, along with
several articles about the controversy. Id.

   [5] Although Núñez also involved news reporting, the sim-
ilarities end there. The controversy there was whether the
salacious photos themselves were befitting a “Miss Universe
Puerto Rico,” and whether she should retain her title. In con-
trast, the controversy here has little to do with photos; instead,
the photos here depict the couple’s clandestine wedding. The
photos were not even necessary to prove that controverted
fact—the marriage certificate, which is a matter of public
record, may have sufficed to inform the public that the couple
kept their marriage a secret for two years. Indeed, “[t]he pub-
lic interest in the free flow of information is assured by the
law’s refusal to recognize a valid copyright in facts.” Iowa
State Univ. Research Found., Inc. v. Am. Broad. Cos. Inc.,
621 F.2d 57, 61 (2d Cir. 1980). Under copyright law, Maya
possesses “an unfettered right to use any factual information
revealed [through the photos] for the purpose of enlightening
its audience, but it can claim no need to bodily appropriate
[the couple’s] expression of that information by utilizing por-
tions of the actual [photos].” Id. (internal quotation marks
omitted). Unlike here, in Núñez “the pictures were the story,”
and the newspaper in Núñez did not seek to “manufacture
newsworthiness,” nor did it “scoop” the story. 235 F.3d at 22.8
  8
    Contrary to the dissent’s concern, where the content of the work is the
story, such as a controversy over a congressman’s “salacious” photos or
a golf celebrity’s “sext” messages, news reporters would have a better
claim of transformation, which, far from being determinative, is simply
one of the factors we consider in the fair use analysis. See Murphy, 650
F.3d at 307-08 (“Under many circumstances, reporters will indeed be able
to claim a fair use defense against claims of infringement.”). In any event,
neither example the dissent provides pertains to a “private,” unpublished
work—both Tiger Woods and Congressman Weiner distributed their
“masterpieces” to others.
9188           MONGE v. MAYA MAGAZINES, INC.
Also significant, the work in Núñez had already been distrib-
uted when the infringement occurred. Id. at 20.

   We reiterate what the First Circuit emphasized, namely that
there is no “general ‘newsworthiness’ exception.” Id. In other
words, newsworthiness itself does not lead to transformation.
The dissent’s doomsday prediction about the impact of our
decision on investigative journalism is overblown. See Harper
& Row, 471 U.S. at 561 (“The issue is not what constitutes
news, but whether a claim of newsreporting is a valid fair use
defense to an infringement of copyrightable expression. The
[magazine] has every right to seek to be the first to publish
information. But [the magazine] went beyond simply report-
ing uncopyrightable information and actively sought to
exploit the headline value of its infringement, making a news
event out of its unauthorized first publication of a noted fig-
ure’s copyrighted expression.” (internal quotation marks and
citation omitted)).

   Maya’s purpose in publishing the photos was to expose the
couple’s secret wedding, which was at odds with the couple’s
purpose of documenting their private nuptials. See Perfect 10,
Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007)
(using “images in a new context to serve a different purpose”
may be transformative). But even an infringer’s separate pur-
pose, by itself, does not necessarily create new aesthetics or
a new work that “alter[s] the first [work] with new expression,
meaning or message.” Infinity Broad. Corp. v. Kirkwood, 150
F.3d 104, 108 (2d Cir. 1998) (quoting Campbell, 510 U.S. at
579). A “difference in purpose is not quite the same thing as
transformation, and Campbell instructs that transformative-
ness is the critical inquiry under this factor.” Id.

   [6] Maya did not transform the photos into a new work, as
in Campbell, or incorporate the photos as part of a broader
work, as in CBS Broadcasting. Instead, unlike the thumbnail
images at issue in Perfect 10, Maya left the inherent character
of the images unchanged. See Perfect 10, Inc., 508 F.3d at
               MONGE v. MAYA MAGAZINES, INC.               9189
1165 (“a search engine provides social benefit by incorporat-
ing an original work into a new work, namely, an electronic
reference tool.”). Maya’s use—wholesale copying sprinkled
with written commentary—was at best minimally transforma-
tive. See Pierre N. Leval, Toward a Fair Use Standard, 103
HARV. L. REV. 1105, 1111 (1990) (use of copyrighted material
that “merely repackages or republishes the original” is
unlikely to be fair use).

    3.   Commercial Use

  Maya’s use was undisputedly commercial in nature. The
gossip magazine makes no pretense that it is educational. It is
a commercial publication.

   [7] The Supreme Court has stated that “every commercial
use of copyrighted material is presumptively an unfair exploi-
tation of the monopoly privilege that belongs to the owner of
the copyright.” Sony, 464 U.S. at 451. Commercial use is a
“factor that tends to weigh against a finding of fair use”
because “the user stands to profit from exploitation of the
copyrighted material without paying the customary price.”
Harper & Row, 471 U.S. at 562. There is no dispute here that
Maya is motivated by profits, and in fact profited from the
publication of the pictures.

   [8] Although Maya’s reporting on the clandestine wedding
was newsworthy, newsworthiness, by itself, is insufficient to
demonstrate fair use. Similarly, exposing truths in the public
interest is not a bell weather of fair use. See Chicago Bd. of
Educ. v. Substance, Inc., 354 F.3d 624, 629-30 (7th Cir. 2003)
(denying fair use defense for a newspaper that published in
their entirety six “secure” tests—tests that are generally kept
secret—to demonstrate their shortcomings). Maya’s minimal
transformation of the photos is substantially undercut by its
undisputed commercial use. See Infinity Broadcast Corp., 150
F.3d at 109 (the different, and possibly beneficial, purposes of
the copying is outweighed by the total absence of transforma-
9190           MONGE v. MAYA MAGAZINES, INC.
tiveness). On balance, the first factor is at best neutral, and
does not support Maya’s claim of fair use.

  B.   NATURE OF THE COPYRIGHTED WORK

  [9] Under the second factor, we address two aspects of the
work: the extent to which it is creative and whether it is
unpublished. Harper & Row, 471 U.S. at 563-64.

   [10] Photos are generally viewed as creative, aesthetic
expressions of a scene or image and have long been the sub-
ject of copyright. See 17 U.S.C. § 102(a)(5) (extending copy-
right protection to “pictorial, graphic, and sculptural works”).
In the seminal case protecting photos, the Supreme Court held
that a photographic portrait of Oscar Wilde was entitled to
copyright protection because of various creative elements
employed by the photographer. Burrow-Giles Lithographic
Co. v. Sarony, 111 U.S. 53, 61 (1884). Although the Court
expressly declined to rule on whether “the ordinary produc-
tion of a photograph” necessarily exhibits sufficient original-
ity to claim copyright, id. at 59, our court has recognized that
individual photos merit copyright protection. See, e.g., Ets-
Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1074 (9th Cir.
2000) (“Indeed, the idea that photography is art deserving
[copyright] protection reflects a longstanding view of Anglo-
American law.”).

   Admittedly, the point-and-shoot images here are hardly the
work of famous photographers like Richard Avedon, Diane
Arbus, or Annie Liebovitz. But neither are they entirely fac-
tual in nature, as Maya argues. Simply because a photo docu-
ments an event does not turn a pictorial representation into a
factual recitation of the nature referenced in Harper & Row.
Photos that we now regard as iconic often document an event
—whether the flight of the Wright Brothers’ airplane, the sail-
or’s kiss in Times Square on V-J Day, the first landing on the
moon, or the fall of the Berlin Wall. See generally
PHOTOS THAT CHANGED THE WORLD (Prestel Verlag 2000).
                MONGE v. MAYA MAGAZINES, INC.                9191
   [11] Although the published photos were not highly artistic
in nature, they do have a defining and common characteristic
—until Issue 633 hit the stands, they were unpublished. We
pointedly note that we address the unpublished status of the
photos only under copyright principles, not privacy law. See
Bond v. Blum, 317 F.3d 385, 395 (4th Cir. 2003) (“the protec-
tion of privacy is not a function of the copyright law.”). “It
may seem paradoxical to allow copyright to be obtained in
secret documents, but it is not. . . . [F]ederal copyright is now
available for unpublished works that the author intends to
never see the light of day.” Chicago Bd. of Educ., 354 F.3d
at 627. We begin with a basic principle: “the unpublished
nature of a work is a key, though not necessarily determina-
tive, factor tending to negate a defense of fair use.” Harper
& Row, 471 U.S. at 554 (quotation and other marks omitted).
The Court specifically honed in on the unpublished status of
the work, calling it “a critical element of its ‘nature.’ ” Id. at
564. Accordingly, “[u]nder ordinary circumstances, the
author’s right to control the first public appearance of his
undisseminated expression will outweigh a claim of fair use.”
Id. at 555 (emphases added).

   The Court has been silent on what sort of “extraordinary
circumstances” overcome the presumption against pre-
publication fair use; however, under a 1992 amendment to the
Copyright Act, “[t]he fact that a work is unpublished shall not
itself bar a finding of fair use if such finding is made upon
consideration of all [four] factors.” 17 U.S.C. § 107. The 1992
addition to the fair use statute undid a line of Second Circuit
cases that created a bar on fair use where unpublished letters
were being used in biographies. See New Era Publ’ns Int’l v.
Henry Holt & Co., 873 F.2d 576, 583 (2d Cir. 1989); Salinger
v. Random House, Inc., 811 F.2d 90, 99-100 (2d Cir. 1987).
The congressional report noted that it was “not the Commit-
tee’s intention to alter the weight currently given by the courts
to the unpublished nature of a work under the second fair use
factor. The general principles regarding fair use of unpub-
lished works set forth by the Supreme Court in Harper & Row
9192           MONGE v. MAYA MAGAZINES, INC.
v. Nation Enterprises still apply.” H.R. Rep. No. 102-286, at
9 (1992), reprinted in 1992 U.S.C.C.A.N. 2553, 2561. The
Senate confirmed the vitality of Harper & Row: “we intend
to roll back the virtual per se rule of Salinger and New Era,
but we do not mean to depart from Harper & Row.” S. Rep.
No. 102-141, at 5-6 (1991).

   [12] We are unable to discern anything extraordinary about
the situation here, and agree with the district court that
Maya’s “publication undoubtedly supplanted Plaintiffs’ right
to control the first public appearance of the photographs.”
Contra Núñez, 235 F.3d at 23 (“[Defendant] did not aim to
use the photographs to compete with Núñez, nor to supple-
ment his right of first production”). This finding further dis-
tinguishes Núñez, where the works were hardly confidential
or secret and “had already been distributed” when the
infringement occurred. Id. at 21, 23. In contrast, Maya’s head-
lines bragged about its exclusive photo spread of never before
seen images.

   [13] In analyzing the second factor, the nature of the work,
we balance the copyright protection received by marginally
creative works with the Supreme Court’s clear recognition
that the unpublished status of the work is a “critical element.”
These aspects counter-balance each other, and because the
case is not exceptional, we apply the Supreme Court’s admo-
nition that with respect to unpublished works, this factor “out-
weighs” Maya’s claim of fair use. See Harper & Row, 471
U.S. at 555.

  C.   AMOUNT AND SUBSTANTIALITY OF THE PORTION USED

   [14] The third statutory factor in the fair use analysis is
“the amount and substantiality of the portion used in relation
to the copyrighted work as a whole.” 17 U.S.C. § 107(3). We
examine both the quantitative and qualitative aspects of the
portion of the copyrighted material taken. Campbell, 510 U.S.
at 586. Quantitatively, every single photo of the wedding and
                  MONGE v. MAYA MAGAZINES, INC.                       9193
almost every photo of the wedding night were published.
With respect to the ceremony, none of the three published
photos were heavily cropped. The same is true regarding the
remaining photos, with the exception of the image where
Reynoso is smoking a cigar. Qualitatively, the minimal crop-
ping of each picture demonstrates that the “heart” of each
individual copyrighted picture was published. Elvis Presley
Enters., 349 F.3d at 630 (courts should “look to see whether
‘the heart’ of the copyrighted work is taken.”).

   [15] The inquiry under this factor is a flexible one, rather
than a simple determination of the percentage of the copy-
righted work used. But we should be clear, Maya copied 100
percent of the copyrighted photos at issue. Id. (noting as to
Elvis Presley photos, defendants used “entire picture” in the
infringing work). While we do not discredit Maya’s legitimate
role as a news gatherer, its reporting purpose could have been
served through publication of the couple’s marriage certificate
or other sources rather than copyrighted photos. Even absent
official documentation, one clear portrait depicting the newly
married couple in wedding garb with the priest would cer-
tainly have sufficed to verify the clandestine wedding. Maya
used far more than was necessary to corroborate its story—all
three wedding images and three post-wedding photos. Thus,
analyzing both the quantitative and qualitative aspects of the
published material, this factor weighs against fair use.

   Maya does not challenge the copyrightability of the indi-
vidual photos, and each of the five individual images is part
of a separate and distinct copyright registration. During oral
argument, however, the district court minimized the amount
and substantiality of Maya’s use in stating: “Defendants pub-
lished only 5 [sic] of the 400 photographs of plaintiffs’ wed-
ding that defendants purchased.”9 While Maya did obtain over
  9
    The district court made a clearly erroneous finding of fact with respect
to this factor. See Sawyer v. Whitley, 505 U.S. 333, 372 (1992) (a district
court’s findings of fact are reviewed for clear error). Although Maya
undisputedly published six photos, the district court’s finding that five
photos, instead of six, were published is an inconsequential error that does
not affect our analysis.
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’ wed-
ding” 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 wed-
ding day and Maya published six of those images. To suggest
that this usage should be compared to a universe of four hun-
dred 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 insubstan-
tial simply because only a few images from this “compila-
tion” 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, coordi-
nated, or arranged in such a way that the resulting work as
a whole constitutes an original work of authorship. The term
                  MONGE v. MAYA MAGAZINES, INC.                    9195
‘compilation’ includes collective works.” 17 U.S.C. § 101
(emphasis added); see also id. (defining a “collective work”
as a work “in which a number of contributions, constituting
separate and independent works in themselves, are assembled
into a collective whole.” (emphasis added)).

   The dissent’s effort to recast the images on the storage disk
as a “compilation” poses several insurmountable hurdles for
Maya. To its credit, Maya made no such argument; this theory
is an invention by the dissent. To begin, there is absolutely no
evidence that the multiple images were in any way “selected,
coordinated, or arranged” to create “an original work of
authorship.” Maya did not even submit for the record the
other material on the storage disk and nothing in the record
supports a finding regarding compilation. Indeed, it would
take an act of legal clairvoyance to deem the material on the
disk a copyrighted compilation without ever seeing it. Finally,
Maya bears the burden on this point and yet has offered noth-
ing. To say, as the dissent does, that Maya “carefully selected
the photos” (Dissent at 9214) glosses over the reality that
Maya copied all of the wedding-related photos. Total appro-
priation, not selection, would be a more accurate characteriza-
tion.

   [16] Each of the individual wedding photos is a separate
work10 because each photo “can live [its] own copyright life”
and “has an independent economic value and is, in itself, via-
ble.” Columbia Pictures TV, Inc. v. Krypton Broad. of Bir-
mingham, Inc., 259 F.3d 1186, 1193 (9th Cir. 2001)
(affirming prior decision that each episode of television series
was a separate “work”) (citations omitted). In sum, there is no
  10
     Although the Copyright Act does not define the term “work,” courts
approach the definition depending on the specific issue, for example,
deciding proper registration, determining whether a work is sufficiently
original, and calculating statutory damages. See generally Nimmer on
Copyright § 2.08. We need not parse the definition in the context of fair
use because the outcome does not depend on it. No evidence supports
treating the four hundred photos as a single work.
9196           MONGE v. MAYA MAGAZINES, INC.
compilation and it makes sense to treat each photo as an indi-
vidual copyrighted work. Even if the facts could be stretched
and the grouping of wedding photos could qualify as a compi-
lation, the result would be the same—Maya’s use was not just
substantial, it was total. This factor weighs decisively against
fair use.

  D.   EFFECT UPON THE POTENTIAL MARKET

   [17] The final fair use factor is “the effect of the use upon
the potential market for or value of the copyrighted work.” 17
U.S.C. § 107(4) (emphasis added). The Supreme Court
declared in Harper & Row that “[t]his last factor is undoubt-
edly the single most important element of fair use.” 471 U.S.
at 566 (footnote and citation omitted). Maya argued, and the
district court agreed, that no potential market for the pictures
existed because the couple did not intend to sell publication
rights to the photos. The district court’s legal conclusion that
the potential market was destroyed due to the couple’s then-
present intent regarding publication was in error.

   As discussed above, in Campbell, the Court offered a
nuanced approach relating to the presumption of market harm.
It explained that commercial use may tip the scale toward
market harm, but like the other factors, it “may be addressed
only through a ‘sensitive balancing of interests.’ ” Campbell,
510 U.S. at 590 n.21 (quotation omitted). Specifically, where
“the second use is transformative, market substitution is at
least less certain, and market harm may not be so readily
inferred.” Id. at 591. However, a presumption of market harm
“makes common sense[ ] when a commercial use amounts to
mere duplication of the entirety of an original.” Id. Thus, the
market harm analysis is affected by whether the harm is
caused by commercial use of a mere duplicate or by commer-
cial use post-transformation. Cf. Leadsinger, Inc. v. BMG
Music Publ’g, 512 F.3d 522, 531 (9th Cir. 2008) (“when ‘the
intended use is for commercial gain,’ the likelihood of market
harm ‘may be presumed’ ” (quoting Sony, 464 U.S. at 451)).
                MONGE v. MAYA MAGAZINES, INC.               9197
   [18] In light of the Supreme Court’s admonition eschewing
presumptions under this factor, we refrain from presuming
harm in the potential market; instead, we determine it in the
first instance. The cases addressing the potential market for
unpublished works illustrate the importance of letting the
copyright owner control first publication. “Under section 107,
‘potential market’ means either an immediate or a delayed
market, and includes harm to derivative works.” Cable/Home
Commc’n Corp. v. Network Prods., Inc., 902 F.2d 829, 845
(11th Cir. 1990). Control over the delayed market includes
future markets. Id. Our circuit has gone further to state that
“[e]ven an author who had disavowed any intention to publish
his work during his lifetime was entitled to protection of his
copyright, first, because the relevant consideration was the
‘potential market’ and, second, because he has the right to
change his mind.” Worldwide Church of God v. Philadelphia
Church of God, Inc., 227 F.3d 1110, 1119 (9th Cir. 2000).
The Second Circuit is in accord: “It would . . . not serve the
ends of the Copyright Act—i.e., to advance the arts—if artists
were denied their monopoly over derivative versions of their
creative works merely because they made the artistic decision
not to saturate those markets with variations of their original.”
Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., 150 F.3d 132,
145-46 (2d Cir. 1998) (internal quotation marks omitted). The
potential market for the photos exists independent of the cou-
ple’s present intent, and the district court’s decision to the
contrary was error.

   [19] Recognizing that fair use focuses on potential, not just
actual, market harm, we note there is little doubt that an actual
market exists for the photos. See Harper & Row, 471 U.S. at
567 (“The trial court found not merely a potential but an
actual effect on the market.”). Maya does not offer any evi-
dence of the relevant market or the lack of market harm from
its publication other than broad, unsubstantiated statements in
its brief. Campbell, 510 U.S. at 590 (“Since fair use is an
affirmative defense, its proponent would have difficulty carry-
ing the burden of demonstrating fair use without favorable
9198            MONGE v. MAYA MAGAZINES, INC.
evidence about relevant markets.” (footnotes omitted)). The
magazine’s failure of proof is hardly surprising: The couple
is undisputedly in the business of selling images of them-
selves and they have done so in the past and Maya itself paid
$1,500 for prior photos. Maya’s purchase of the pictures
unequivocally demonstrates a market for the couple’s copy-
righted pictures. And Maya is itself a participant in the market
for celebrity wedding photos, as Issue 633 also featured pic-
tures of another celebrity wedding with photos that the maga-
zine purchased. The demand for the pictures in the actual
market, just as in the potential market, dropped significantly
upon Maya’s first and exclusive publication.

   The impact on the potential market for unpublished works
is best illustrated by the Court’s analysis in Harper & Row:
“The right of first publication implicates a threshold decision
by the author whether and in what form to release his work.”
471 U.S. at 553 (emphasis added). In other words,
“[p]ublication of an author’s expression before he has autho-
rized its dissemination seriously infringes the author’s right to
decide when and whether it will be made public, a factor not
present in fair use of published works.” Id. at 551; id. at 564
(“right of first publication encompasses . . . the choice
whether to publish at all”). As in Worldwide Church of God,
Monge and Reynoso have “the right to change [their] mind.”
227 F.3d at 1119. They reasonably could decide to sell the
images for profit in the future, as Reynoso has demonstrably
done in the past. Similarly, photos of Monge have also been
marketed commercially, even to a Maya publication. While
Maya boldly emphasized that its publication was “[f]irst and
exclusive,” the couple’s intention at the time of the publica-
tion did not give Maya license to forever deprive them of their
right to decide when, “whether and in what form to release”
the photos. Harper & Row, 471 U.S. at 551, 553. Thus,
Maya’s claim that a confidential work receives less copyright
protection because its author intends to maintain confidential-
ity finds no support; to the contrary, “[i]t has never been seri-
ously disputed that the fact that the plaintiff’s work is
                MONGE v. MAYA MAGAZINES, INC.               9199
unpublished . . . is a factor tending to negate the defense of
fair use.” Id. at 551 (internal quotation marks omitted).

   [20] Although the photos were unpublished until Maya
printed them for commercial gain, after the publication of
Issue 633, the bottom literally dropped out of the market—
neither Maya nor anybody else is likely to purchase these pic-
tures from the couple. And it is obvious that any licensing
value, to the extent the couple could find a willing licensee,
is severely diminished. Maya’s un-authorized “first and exclu-
sive” publication of the images substantially harmed the
potential market because the publication directly competed
with, and completely usurped, the couple’s potential market
for first publication of the photos.

   In addition, “to negate fair use one need only show that if
the challenged use should become widespread, it would
adversely affect the potential market for the copyrighted
work.” Id. at 568 (quotations omitted). Unrestricted and wide-
spread reproduction of Maya’s conduct would not only under-
mine the ability of celebrities to market images of themselves,
but would also create incentives to pirate intellectual property.
In this case, “[t]here is no analytical difference between
destroying the market for a copyrighted work by producing
and selling cheap copies and destroying the subsequent years’
market for a [work] by blowing its cover.” Chicago Bd. of
Educ., 354 F.3d at 627.

  Our focus on the usurpation of the market further under-
scores the limited extent to which Maya transformed the
works. In a true transformation, such as the parody in Camp-
bell, “it is more likely that the new work will not affect the
market for the original . . . because the parody and the original
usually serve different market functions.” 510 U.S. at 591.
Not so here. Maya did not transform the images and create a
new work; instead, Maya’s mere duplication of the photos
“serves as a market replacement for [the originals], making it
9200             MONGE v. MAYA MAGAZINES, INC.
likely that cognizable market harm to the original[s] will
occur.” Id. (citations omitted).11

   The curtailment of both the actual and potential market for
the pictures demonstrates that Maya’s use, even if credited as
mildly transformative, nonetheless functioned as a market
replacement for the photos. In this respect, while we do not
presume market harm, such a presumption would, as the
Supreme Court recognized, make “common sense” here
because Maya’s commercial use was based on duplication of
the original. Id. (discussing Sony, 464 U.S. at 451).

   [21] This factor brings us full circle. We recognize that
market harm may not be presumed in all instances; however,
the harm to both the potential and actual markets based on
wholesale copying of unpublished works demonstrates the
logic of such a presumption in cases “when a commercial use
amounts to mere duplication of the entirety of an original.” Id.
Because the facts demonstrate that Maya’s use was akin to
mere duplication—affecting both the actual and potential
market for the photos—even without the benefit of any pre-
sumption, this factor tips against fair use. In this case, the cat
is out of the bag.

III.   DENOUEMENT

   Our long journey through the nooks and crannies of fair use
law with our colorful cast of characters comes to an end as we
determine whether the “most troublesome” doctrine in the law
of copyright protects Maya’s use. This is neither a mechanis-
tic exercise nor a gestalt undertaking, but a considered legal
judgment. Following the statute, we consider each of the four
factors and put them in the judicial blender to find the appro-
priate balance. In doing so, we are not without guidance. Pre-
  11
    For a discussion of the interplay between transformation of the work
and the effect upon the potential market, see Nimmer on Copyright
§ 13.05[4], which explains the tautology inherent in this factor.
                MONGE v. MAYA MAGAZINES, INC.               9201
cedent from both the Supreme Court and our court gives us
a solid foundation to make this judgment. Although we delin-
eate the factors individually, we recognize that our task is to
consider these non-exclusive factors as a total package in
assessing fair use.

   Waving the news reporting flag is not a get out of jail free
card in the copyright arena. Iowa State Univ. Research
Found., 621 F.2d at 61 (“The fair use doctrine is not a license
for corporate theft, empowering a court to ignore a copyright
whenever it determines the underlying work contains material
of possible public importance.”). Maya’s effort to document
its exposé does not automatically trump the couple’s rights in
its unpublished photos. Because the minimal transformation
occasioned by Maya’s use is amply outweighed by its com-
mercial use, the first factor does not support the magazine.
And, even if it did, this factor does not dwarf the effect of the
other factors. Upon balancing the copyright protection for
these marginally creative works against their unpublished sta-
tus, we see nothing exceptional about this case, and follow the
Supreme Court’s direction that the second factor weighs
against Maya in this instance. Next, Maya has not demon-
strated that the third factor supports fair use. Maya used virtu-
ally the entirety of the wedding-related photographs; much
more than was necessary to corroborate its story. Finally, the
district court further erred by holding, without support, that
the couple’s then-present intention destroyed the potential
market for the photographic works. Maya’s use negatively
affected both the potential and actual markets for the couple’s
photos. Simply because the works were yet unpublished did
not give Maya a license to pull the trigger and blow the cou-
ple’s cover.

   [22] The balancing of these factors must be weighed
against Maya’s burden to establish fair use. Without a single
factor tipping in its favor, Maya has not met its burden.
Because Maya’s affirmative defense of fair use fails as a mat-
ter of law, the district court erred by granting summary judg-
9202             MONGE v. MAYA MAGAZINES, INC.
ment in favor of Maya on the basis of fair use.12 Instead, the
district court should have granted the couple’s summary judg-
ment motion on this issue.

  REVERSED and REMANDED.



M. SMITH, Circuit Judge, dissenting:

   I respectfully dissent. Copyright is not an inviolable right
that confers upon creators absolute control and ownership
over their creations. Copyright protection was enacted “[t]o
promote the Progress of Science and useful Arts” by creating
a system in which authors and artists may reap the benefits of
their creative contributions. U.S. Const. art. I, § 8, cl. 8. The
fair use doctrine was designed to act as the counterbalance to
copyright by “permit[ting] courts to avoid rigid application of
the copyright statute when, on occasion, it would stifle the
very creativity which that law is designed to foster.” Camp-
bell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994)
(internal citation and quotations omitted).

   The majority’s fair use analysis in this case is inconsistent
with Supreme Court precedent, and thwarts the public inter-
ests of copyright by allowing newsworthy public figures to
control their images in the press. The majority contends that
the public interest in a free press cannot trump a celebrity’s
right to control his image and works in the media—even if
that celebrity has publicly controverted the very subject mat-
ter of the works at issue. Under the majority’s analysis, public
figures could invoke copyright protection to prevent the
media’s disclosure of any embarrassing or incriminating
works by claiming that such images were intended only for
  12
    Because the district court erred in granting summary judgment in
favor of Maya, we do not reach the issue of awarding Maya its attorney’s
fees.
                    MONGE v. MAYA MAGAZINES, INC.                    9203
private use. The implications of this analysis undermine the
free press and eviscerate the principles upon which copyright
was founded. Although newsworthiness alone is insufficient
to invoke fair use, public figures should not be able to hide
behind the cloak of copyright to prevent the news media from
exposing their fallacies. Accordingly, because three of the
photos directly proved the fact of the Noelia Monge’s and
Jorge Reynoso’s (the Couple) marriage, I would affirm the
district court’s finding of fair use as to those wedding photos.
However, because the remaining two photos did not directly
prove the Couple’s wedding and therefore may have been
unnecessary to the story, I would remand on the grounds that
genuine issues of material fact exist, precluding summary judg-
ment.1

I.       FAIR USE ANALYSIS

  The fair use analysis consists of a four-part test, consider-
ing:

         (1) the purpose and character of the use, including
         whether such use is of a commercial nature or is for
         nonprofit educational purposes;

         (2) the nature of the copyrighted work;

         (3) the amount and substantiality of the portion used
         in relation to the copyrighted work as a whole; and

         (4) the effect of the use upon the potential market for
         or value of the copyrighted work.
     1
   Registration is a prerequisite to sue under the Copyright Act of 1976.
17 U.S.C. § 411. Accordingly, the Couple may only recover for the five
photographs for which they hold registrations. The Couple may not
recover for the sixth photograph (taken of the two at a bar) as they do not
hold the registration for it (it was taken by a bartender or waitress).
9204            MONGE v. MAYA MAGAZINES, INC.
17 U.S.C. § 107.

  The majority contends that none of these fair use factors
weighs in favor of Maya Magazines’s (Maya) fair use of the
Couple’s wedding photos. I respectfully disagree with the
majority’s analysis, and I address each of the factors in turn.

  A.   Purpose and Character of Use

   The transformative use analysis is an integral question
under the first factor, and in fair use generally. Campbell, 510
U.S. at 579 (explaining that transformative uses “lie at the
heart of the fair use doctrine[ ]”); see also 4 Melville B. Nim-
mer & David Nimmer, Nimmer on Copyright
§ 13.05[a][1][B] (Matthew Bender rev. ed. 2012). “The cen-
tral purpose of [the purpose and character inquiry] is to see
. . . whether the new work merely ‘supersede[s] the objects’
of the original creation . . . or instead adds something new,
with a further purpose or different character, altering the first
with new expression, meaning, or message.” Campbell, 510
U.S. at 579 (citations omitted). The use of photographic evi-
dence to prove a “controversial,” “salacious,” or controverted
fact weighs in favor of a finding of fair use. Murphy v. Mil-
lenium Radio Grp. LLC, 650 F.3d 295, 306 (3d Cir. 2011);
see also Nuñez v. Caribbean Int’l News Corp., 235 F.3d 18,
22 (1st Cir. 2000) (finding fair use of nude and semi-nude
photographs in controversy over the qualifications of Miss
Puerto Rico Universe); Fitzgerald v. CBS., Inc., 491 F. Supp.
2d 177, 186 n. 2 (D. Mass. 2007) (explaining that “recontex-
tualization” of a photo may be transformative when publica-
tion is relevant to a newly developed matter of public
concern). In the case of photographic works, a use may be
found to be transformative if it complements the original
work, rather than supersedes it. Ty, Inc. v. Publ’ns Int’l, Co.,
292 F.3d 512, 518 (7th Cir. 2002). Ultimately, the more trans-
formative the use, the less other factors, such as commer-
ciality, weigh against a finding of fair use. Campbell, 510
U.S. at 579.
               MONGE v. MAYA MAGAZINES, INC.                9205
   The majority contends that Maya’s use of the photos was
not transformative because (1) the photos were minimally
changed with limited commentary; (2) the photos were
offered for the exact same purpose—to document the wed-
ding; and (3) the newsworthiness of the photos was insuffi-
cient to support a finding of fair use. I respectfully disagree
on all three points.

    1.   Editing, Arrangement, and Commentary

   The majority attempts to diminish the significance of
Maya’s commentary, cropping, re-sizing, and arrangement of
the photos by presenting the publication as little more than a
photo album. This is simply not accurate. The February 10,
2009 exposé consisted of a stylized two-page spread: on the
left page was a full length image of Reynoso and Noelia
embracing in the wedding chapel (originally cropped on the
front cover), accompanied by a red text box on the lower left
hand corner, with the print:

    Definitely, Noelia never ceases to amaze us.
    Whether it is her fights with her mother, her allega-
    tions of sexual abuse, her pornographic videos, her
    problems with the press or the behavior of her part-
    ner, Jorge Reynoso, the Puerto Rican singer always
    takes over the headlines, and this time is no excep-
    tion. In fact, a lot has been said about a supposedly
    secret wedding in Las Vegas, Nevada, that took
    place in January 2007, but until now, no one had
    shown photos of that memorable day. TVNotas got
    a hold of those photos and shows them to you now,
    exclusively.

   The second page consisted of a full page, four-photo mon-
tage: first, a different wedding picture of Noelia and Reynoso,
next to the minister who married them, in the same wedding
clothing, in the same chapel, with the caption,”POSING
WITH THE MINISTER OF THEIR MARRIAGE,” and
9206              MONGE v. MAYA MAGAZINES, INC.
accompanying the inset text, “Noelia Lorenzo-Monge and
Jorge Reynoso looked happy, she in her stretch mini dress and
a garter, he in a suit and tie.” To the immediate right of that,
a close up photo of Noelia and Reynoso kissing, with two
inset captions, above “THEIR FIRST KISS AS MAN AND
WIFE” and below, with the accompanying inset text, “After
years of a relationship, Reynoso finally came through for
her.” In the second row, to the left was a photo of Noelia pos-
ing next to a seated Reynoso in a bar, his arm around Noelia
and a cigar in his hand, with the caption above, “THEY
WENT TO A BAR.”2 Finally, to the right of that, a fourth
photo of Noelia, laying on the bed in the same stretch white
mini dress and black knee high boots, exposing her underwear
and looking seductively at the camera, with the above caption,
“THIS IS HOW THE SINGER ENDED UP IN THE NUP-
TIAL SUITE,” also accompanied by a smaller caption inset,
“Flirty, suggestive and happy, as every wife would be, the
Singer posed ready for her wedding night.” At the bottom of
the page in bold, large black and white print read: “Though
they didn’t want to confirm their marriage, these images
speak for themselves.”

   Maya’s article constituted much more than a haphazard
republication of the Couple’s photos. Framed around the Cou-
ple’s refusals to confirm their marriage and to continue to rep-
resent Noelia as an “unwed sex symbol,” Maya used the
images as documentary evidence. We, as well as our sister
circuits, have held that a photo montage, with accompanying
commentary, may constitute a transformative use. See Núñez,
235 F.3d at 22 (finding transformative use of photographs in
news story where “the pictures were shown not just to titillate,
but also to inform”), L.A. News Serv. v. KCAL-TV Channel 9,
108 F.3d 1119, 1122 (9th Cir. 1997) (finding a montage of
images of the Los Angeles riots, rather than a mere re-
broadcast of the original film, transformative). Maya’s com-
  2
   The Couple did not register this photograph, accordingly, they may not
sue for infringement. 17 U.S.C. § 411.
                  MONGE v. MAYA MAGAZINES, INC.                    9207
mentary, editing, and arrangement of the photos added to, and
ultimately changed, the original character of the images by
advancing them as the basis of an exposé. The extent of
Maya’s editing, commentary, and arrangement thus weighs in
favor of a finding of transformativeness. Campbell, 510 U.S.
at 579.

      2.   Different Purpose

   The majority contends: “[i]n one sense, the parties’ pur-
poses are identical: Photographic documentation of the wed-
ding.” However, the majority repeatedly confuses the original
subject matter of the photos with the intended use of the
images. For the Couple, these were personal images, origi-
nally taken to capture the night of their marriage. After they
were married, however, the photos were kept secret for the
Couple’s commercial gain. As Reynoso testified, the images
were withheld from the public solely for “marketing” pur-
poses, in order to maintain Noelia’s “image of being a single
singer appeal to young people.”3 (“Q: Why did you decide to
have a secret wedding? A: I just mentioned to you that we’re
trying to protect her image of being a single singer to appeal
to young people . . . Q: Were there any other reasons? A: No,
just marketing reasons.”). For Maya, the photos were used as
direct, documentary evidence of a clandestine wedding that
had been hidden from the public for years, disproving the
Couple’s representations to the contrary. Indeed, media spec-
ulation regarding their relationship—even referring to them as
husband and wife—had occurred years before the publication
of the TVNotas expose in February 2009. Thus, the exposé
served an entirely different purpose—indeed, a purpose con-
trary to the Couple’s original intent to record and conceal
their Las Vegas wedding. See Pierre N. Leval, Toward a Fair
Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990)
(“Transformative uses may include criticizing the quoted
  3
   Reynoso been linked to other publicity stunts regarding Noelia’s image
as well, including leaking her sex-tape with former-boyfriend.
9208           MONGE v. MAYA MAGAZINES, INC.
work, exposing the character of the original author, proving
a fact, or summarizing an idea argued in order to defend or
rebut it.”) (emphasis added). Accordingly, I would find that
the fundamentally different purpose of Maya’s use also
weighs in favor of a finding of transformativeness.

    3.   Newsworthiness

   The majority misguidedly relies on Harper & Row to criti-
cize newsworthiness as a basis for fair use. However, Harper
& Row is distinguishable on two critical points: (1) the
excerpts at issue were soon-to-be published in a hard-cover
memoir by their author, President Gerald Ford, and rights to
publish excerpts had already been bid on, and sold to, compet-
ing magazines; and (2) Ford had never concealed or contro-
verted the facts at issue in the infringing excerpts. 471 U.S.
at 563-64.

   Specifically, Harper & Row involved the surreptitious pub-
lication by a magazine, The Nation, of critical excerpts of
Gerald Ford’s soon-to-be published memoirs regarding the
Nixon pardon (“A Time to Heal”). The Nation published the
excerpts for commercial gain in an effort to “scoop” the hard-
cover release, as well as its competitors, who had rightfully
bid for publication rights. Harper & Row, 471 U.S. at 563-64.
Here, there was no such subterfuge. The Couple had con-
cealed the truth of their relationship from the public, and even
from their close friends and family. The photographs proved
not only their marriage, but when, where, and how it took
place, and for how long the Couple had hidden the truth. In
short, Maya’s exposé constituted a transformative use because
it “shed[ ] light” upon the Couple’s covert nuptials. See
Campbell, 510 U.S. at 579.

   The majority contends that if a work is created for “private
use,” and then subsequently published without permission
because it is newsworthy, that the publication cannot consti-
tute a fair use. The logical extension of the majority’s reason-
                  MONGE v. MAYA MAGAZINES, INC.                      9209
ing could produce absurd results. If public, newsworthy
figures were permitted to invoke a “private use” exception,
Tiger Woods, for example, could have claimed copyright in
his sexting messages and, without fair use, the media would
have no right to quote them.4 Likewise, without a fair use
defense, the media would have only been able to describe for-
mer Congressman Anthony Weiner’s self-portraits, rather
than reprint the images themselves. Thus, the majority
attempts to distinguish Maya’s use of the wedding photos
from “legitimate” fair uses—namely, when the “content of the
photographs is the story.” In so doing, the majority oversim-
plifies Maya’s use of the images and superimposes the court
as the final arbiter of what is sufficiently “salacious” or “con-
troversial” to constitute a “legitimately” fair use. This is a
“dangerous” intrusion upon both the sanctity of the free press
and copyright. See Bleistein v. Donaldson Lithographing Co.,
188 U.S. 239, 251 (1903) (Holmes, J.) (“It would be a danger-
ous undertaking for persons trained only to the law to consti-
tute themselves final judges of the worth of pictorial
illustrations, outside of the narrowest and most obvious lim-
its.”).

  The majority’s proposed test would effectively vest in the
courts the power to circumscribe news stories and the sources
upon which the media may rely. The line between when a
   4
     The majority implies that Woods’ sext messages and former Congress-
man Weiner’s tweets and Facebook messages were public because they
“distributed their ‘masterpieces’ to others.” The majority’s contention is
contrary to well-established copyright law. The Copyright Act defines
“Publication” as “the distribution of copies or phonorecords of a work to
the public by sale or other transfer of ownership, or by rental, lease, or
lending.” 17 U.S.C. § 101 (emphasis added). Merely sending suggestive
self-portraits or “sexts” to another, private person does not launch a work
into the public domain. See, e.g., Salinger v. Random House, Inc., 811
F.2d 90, 96 (2d Cir. 1987) (emphasizing the private and unpublished
nature of J.D Salinger’s personal letters). Woods’s “writings” were likely
always intended to be kept secret between author and inspiration. And, but
for one rogue tweet, former Congressman Weiner’s “works” were kept
privately between him and his desired recipients.
9210            MONGE v. MAYA MAGAZINES, INC.
copyrighted work “is the story” and when it is not is not
nearly as clear as the majority contends. Thus, if the “story”
of Tiger Woods’ infidelities was limited to merely exposing
his multiple mistresses, the majority’s test would still prohibit
the “fair use” of his sexts because his liaisons could be proven
by other, non-copyrighted sources. Likewise, it is unclear
whether republication of former Congressman Weiner’s semi-
nude tweets and graphic Facebook messages would be
deemed entirely necessary to investigate the organized
“cover-up” of his online trysts. News stories have multiple
purposes, layers, and facets and, by their nature, evolve over
time. Here, while the TVNotas article began as a factual
exposé, the story did not end there. Noelia and Reynoso were
celebrities who carefully concealed their relationship to main-
tain Noelia’s image as a single sex symbol. Maya’s use of the
photos was thus integral to exposing to the public the depth
of their relationship and the actual events of their secret Vegas
wedding night—the venue, the clothing, the after-party. Con-
trary to the majority’s contentions, a mere marriage certificate
would not suffice.

  Accordingly, I would reject the majority’s approach and
hold that the fundamentally different purpose underlying
Maya’s publication of the photos constituted a transformative
use, and thus counterbalanced the commerciality of the use
such that the first favor weighs in favor of a finding of fair
use.

  B.   Nature of Copyrighted Works

   In determining the nature of the original work, we decide
“first, the extent to which it is a creative work enjoying
broader copyright protection as opposed to a factual work
requiring broader dissemination, . . . and second, whether it
is unpublished, in which case the right of first publication is
implicated.” Núñez, 235 F.3d at 23 (citing Harper & Row,
471 U.S. at 563-64) (emphases added). Because “[t]he law
generally recognizes a greater need to disseminate factual
                MONGE v. MAYA MAGAZINES, INC.                9211
works,” the “nature of the work” inquiry is designed to distin-
guish between the levels of “core” protectability of copyright.
Harper & Row, 471 U.S. at 563, 584 n.7 (Brennan, J., dissent-
ing). Indeed, we have held that where a copyrighted work is
“informational and factual and news; each characteristic
strongly favors [a finding of fair use].” L.A. News Serv. v.
CBS Broad., Inc., 305 F.3d 924, 939-40 (9th Cir.), as
amended, 313 F.3d 1093 (9th Cir. 2002). The tiered approach
thus reflects the understanding that certain types of works—
namely, fictional, creative, and unpublished works—fall
closer to the core of copyright, and other types of works—
namely, factual, informative, and published works—enjoy
generally less protection. Id.

   The majority reasons that the nature of the original photo-
graphs weighs against a finding of fair use because they were
unpublished. The majority’s analysis is flawed on two
grounds: (1) the majority ignores the threshold determination
that the photos were factual and documentary in nature; and
(2) even if the unpublished nature of the work did cut against
a finding of fair use, the majority fails to address the fact that
the “nature of the work” analysis is much less significant in
cases of transformative use.

   The majority concedes that the photographs were essen-
tially factual in nature, noting that the images were taken as
“[p]hotographic documentation of the wedding” and charac-
terizing the photos as “point-and-shoot,” and thus “not highly
artistic in nature.” Thus, as a threshold matter, the factual and
informative nature of the photographs places them outside the
core of copyright protection. See Campbell, 510 U.S. at 563;
see also Kelly v. Arriba Software, 336 F.3d 811, 820 (9th Cir.
2003). While the photos were admittedly unpublished, this
factor is less significant because the photographs were docu-
mentary in nature. See Narell v. Freeman, 872 F.2d 907, 914
(9th Cir. 1989) (“The scope of permissible fair use is greater
with an informational work than a creative work.”); see also
Stewart v. Abend, 495 U.S. 207, 237-38 (1990). Moreover,
9212            MONGE v. MAYA MAGAZINES, INC.
even if the unpublished nature of the photos did undercut their
factual character, any possible impact is further mitigated by
the fact that Maya’s exposé constituted a transformative use.
Although the majority attempts to use the unpublished nature
of the works to trump their factual character and Maya’s
transformative use, we have held in cases of transformative
use, the nature of the work carries less significance. See Mat-
tel Inc. v. Walking Mountain Prods., 353 F.3d 792, 803 (9th
Cir. 2003) (explaining that when dealing with transformative
uses, the second factor is much less significant in the overall
fair use analysis). Accordingly, I would hold that the second
factor weighs either neutrally or slightly in favor of a finding
of fair use.

  C.   Substantiality of Use

   When excerpts of a work or compilation of works are taken
to tell a narrative different from, and independent of, the col-
lection in its entirety, we may consider the selection and pro-
portion of the excerpts used against the collection as a whole.
See generally Ty, 292 F.3d at 522-23 (explaining that use of
copyright works that exist within a greater collection, e.g., the
full collection of Beanie Babies used in a comprehensive
guide or the use of particular quotes in a book review, may
constitute fair use if used to serve an acceptable purpose).
Although taking the “heart” of a work generally weighs
against a finding of fair use, selectivity in using only what is
necessary cuts both ways and must be considered in evaluat-
ing the amount and substantiality of the use. See L.A. News
Serv., 305 F.3d at 941.

   The majority concludes that because Maya minimally
cropped and altered the five wedding photographs that, quali-
tatively and quantitatively, the substantiality of the use weighs
against a finding of fair use. Without citation to any legal
authority, the majority reasons that the district court commit-
ted clear error by reasoning that the amount and substantiality
of the use supported a finding of fair use because the Maya
                  MONGE v. MAYA MAGAZINES, INC.                      9213
only used five of approximately four hundred photos and
three videos available to it on the memory disk. The majori-
ty’s analysis lacks any basis in law or fact.

   Contents unseen, Maya purchased a memory disk of four
hundred photos and three videos of Noelia and Reynoso.
Maya paid for that disk, in its entirety, as a compilation.
Indeed, the paparazzo, Oscar Viquiera, received $1,500 for
the disk, as a whole. From that disk, Maya culled through,
extracted, and ultimately published five photos from the Cou-
ple’s secret wedding night to use in its photo montage exposé.
Out of all of the possible photos that Maya could have
selected from the disk, Maya chose those five because they
told the story of the Couple’s clandestine nuptials in Las
Vegas.

   The majority fails to address, let alone refute, the impact of
Maya’s selectivity because it contends that Maya’s use of the
photographs must be evaluated individually since each photo-
graph was copyrighted and registered individually. However,
the majority fails to cite a single case for the proposition that,
because images within a copyrightable compilation were indi-
vidually registered, the amount and substantiality of the use
must be evaluated on an individual basis. To the contrary,
Nimmer observes, “The third factor listed in Section 107 is
‘the amount and substantiality of the portion used in relation
to the copyrighted work as a whole.’ The ‘copyrighted work’
has been held not necessarily to correspond to the registered
work.” 4 Nimmer on Copyright § 13.05 [A][3] (footnotes
omitted) (emphasis added).

  As a matter of law, the district court could not have com-
mitted clear error because there is no binding legal authority
contrary to the district court’s holding.5 The record proves that
  5
   Indeed, the only legal authority the Majority cites even related to this
proposition is Sawyer v. Whitley, 505 U.S. 333 (1994), a Supreme Court
case articulating the clear error standard in a habeas petition.
9214               MONGE v. MAYA MAGAZINES, INC.
the memory disk was the private property of Reynoso and
Noelia, and that the images and the videos on the disk were
related, personal images and videos of Reynoso and Noelia.
Indeed, Juan Guadalupe Garcia Alejandro, Editor of
TVNotas, testified that the four hundred photos and three vid-
eos on the disc were images of the Couple. The majority’s
contention that the images were “unrelated” likewise contra-
dicts record. The fact that the photos and videos on the disk
consisted of the same subjects (Reynoso and Noelia) and, pre-
sumably, the same authors (Reynoso and Noelia) supports
assessing the amount and substantiality of Maya’s use in light
of the collection of the four hundred images and three videos
on the disk. See generally Walt Disney & Co. v. Powell, 897
F.2d 565, 570 (D.C. Cir. 1990) (treating individual photo-
graphs of same subject as compilation, even though individu-
ally registrable). The majority’s attempt to characterize
Maya’s use of the six wedding photos as a “total appropria-
tion” is simply inaccurate; the photographs were taken of the
same subjects, fixed on the same medium, and paid for as part
of a collective whole. Thus, the majority lacks any basis in
either law or in fact to hold that each photograph must be
evaluated individually.6

  The reality is that Maya carefully selected the photos out of
four hundred possible photos and videos on the disk because
   6
     The majority devotes a substantial portion of its analysis to characteriz-
ing the “amount and substantiality” of Maya’s use as a “total appropria-
tion.” The majority fails to address, however, the limited impact of this
factor, as a whole, when a use has been deemed to be “transformative.”
See Campbell, 510 U.S. at 579. Both the district court and this dissent
characterized the third factor as “neutral,” acknowledging facts that
weighed both in favor of and against the fairness of the substantiality of
Maya’s use. The more critical issue, here, is that the transformative pur-
pose of Maya’s use, and the reasonableness of Maya’s use in light of its
purpose, significantly limits the impact of the third factor on the overall
fair use analysis. Castle Rock Entm’t, Inc. v. Carol Publ’g, 150 F.3d 132,
144 (2d Cir. 1998) (emphasizing the importance of determining whether
copying is “consistent with or more than necessary to further ‘the purpose
and character of the use’ “ (quoting Campbell, 510 U.S. at 586-87)).
                  MONGE v. MAYA MAGAZINES, INC.                       9215
it wanted to use them to tell the wedding story. Three of those
five photos depicted the wedding itself. The law dictates, at
least as to the three photos that depicted the wedding cere-
mony, that Maya’s relative restraint in choosing only those
photos supports a finding of fair use. See generally Ty, 292
F.3d at 522-23 (selectivity of images required to accomplish
an acceptable purpose, even images used in their entirety, mit-
igates the substantiality of the use); cf. Los Angeles News
Serv., 305 F.3d at 941. Admittedly, Maya’s use of the addi-
tional two other photos, of the Couple at the bar, and of
Noelia on the nuptial bed, was not necessary to prove the
story of their secret wedding. Maya’s use of these photos is
thus qualitatively distinct from the three images directly
depicting the wedding.7 Accordingly, I would hold that, at
least as to the three photos of the wedding ceremony, Maya’s
selectivity and restraint from using more from the four hun-
dred possible images and videos weighs either neutrally or
slightly in favor of a finding of fair use.

  D.    Harm to Potential and Future Markets

   The majority contends that the Couple’s intention never to
release the photographs, let alone sell them, does not affect
our analysis of harm to potential and future markets. The
majority relies on Worldwide Chuch of God v. Philadelphia
Church of God, Inc., 227 F.3d 1110 (9th Cir. 2000) for the
proposition that even if an author completely “disavowed any
intention to publish his work during his lifetime” that unau-
thorized publication of the work by another could still harm
  7
    Here, I believe the interplay between the selectivity of the use and the
appropriateness of summary judgment is critical. Summary judgment on
fair use grounds is appropriate only if it is the only reasonable conclusion
a trier of fact could reach in the case. See KCAL-TV Channel 9, 108 F.3d
at 1123. Because two of the five photographs did not directly depict the
wedding (one pictured the Couple at a bar in Las Vegas and the other fea-
tured Noelia, exposing her underwear on a hotel bed), I believe a genuine
issue of material fact may exist as to the necessity of their publication in
the wedding exposé.
9216           MONGE v. MAYA MAGAZINES, INC.
potential and future markets. Id. at 1110, 1119. But the major-
ity’s selective analysis mischaracterizes our holding in World-
wide Church of God. Id. at 1119. In Worldwide Church of
God, we specifically exempted from the aforementioned rea-
soning publications involving “market failure,” in which an
author specifically keeps a work from being published for the
purposes of concealing information:

    When an owner refuses to license because he is con-
    cerned that defendant’s work will substitute for his
    own work or derivative works, the owner is repre-
    senting not only his own interest, but also the interest
    of his potential customers and thus the public inter-
    est. Market failure should be found only when the
    defendant can prove that the copyright owner would
    refuse to license out of a desire unrelated to the goals
    of copyright-notably a desire to keep certain infor-
    mation from the public.

Id. at 1119 n. 2 (quoting Wendy Gordon, Fair Use As Market
Failure: A Structural and Economic Analysis of the Betamax
Case and its Predecessors, 82 Colum. L. Rev. 1600, 1634
(1982)).

   Here, the Couple’s intention never to publish photos must
frame our market harm analysis because their intention was
based upon their desire to conceal their secret Las Vegas wed-
ding from the public. The fact that on the date of publication,
nearly two years after their wedding, they had still refused to
even tell their families, let alone the general public, proves
this to be true. The application of the market failure exception
makes sense here because the Couple sought to conceal their
wedding out of their own interests, namely, to preserve
Noelia’s image as a “sex symbol,” in spite of the common
public interest in informing their fans and followers of the
event. See Worldwide Church of God, 227 F.3d at 1119 n.2
and accompanying text; see also Online Policy Grp. v. Die-
bold, Inc., 337 F. Supp. 2d 1195, 1203 (N.D. Cal. 2004) (find-
               MONGE v. MAYA MAGAZINES, INC.               9217
ing Diebold’s subjective intent to conceal problems with its
online voting software dispositive in its analysis of potential
market harms). Accordingly, in light of the Couple’s intention
to continue to conceal their Las Vegas nuptials, I would hold
that the market failure harm exception to the harm to potential
and future markets militates toward a finding of fair use.

                       CONCLUSION

   “Overprotecting intellectual property is as harmful as
underprotecting it. Creativity is impossible without a rich
public domain.” White v. Samsung Elecs. Am., Inc., 989 F.2d
1512, 1513 (9th Cir. 1993) (Kozinski, J., dissenting from
order denying rehearing en banc). To satisfy a celebrity cou-
ple’s desire to control their public images, the majority
extends inapposite case law to undercut the fair use doctrine
and the free press. Rather than follow the majority’s course,
I would affirm the district court’s grant of summary judge-
ment on fair use grounds, at least as to the three images of the
wedding in the exposé, and remand due to disputed issues of
material fact regarding the use of the remaining two non-
wedding photos.
