Fox News Denied Summary Judgment in 9/11 Photograph Fair Use Case

The recent decision in North Jersey Media Group Inc. v. Jeanine Pirro and Fox News Network, LLC. is relevant to copyright infringement.

On 10 February 2015 , Judge Edgardo Ramos from the Southern District of New York (SDNY) denied Fox News Network's motion for summary judgment of a copyright infringement suit filed by the copyright holder of an iconic 9/11 photograph. North Jersey Media Group is the publisher of New Jersey newspaper The Record. It holds the copyright of the widely published photograph of three New York firefighters raising the American flag near the ruins of the World Trade Center. This photograph was taken on 11 September 2001 by photojournalist Thomas E. Franklin while on assignment for The Record.

The facts of the case are as follows. On 11 September 2013, a Fox News employee posted this photograph on the Facebook page of one of Fox's television shows, Justice with Judge Jeanine, and associated it with another famous photograph, taken by Joe Rosenthal, which shows four U.S. Marines raising the American flag on Iwo Jima, during World War II. While the two images were not otherwise altered, the Fox News employee juxtaposed #neverforget on the images before posting them online. North Jersey Media Group Inc. contacted Fox News two days later, asking the photograph to be taken down, and the posting was deleted.

However, in October 2013, North Jersey Media Group Inc. filed a copyright infringement suit against Jeanine Pirro, aka Judge Jeanine, and against the Fox network. The Defendants applied for summary judgment, claiming fair use. The Southern District of New York denied the motion on 10 February 2015, after having examined the four fair use factors set forth by Section 107 of the Copyright Act.

The four fair use factors considered by the Judge are: Purpose and Character of the Use, Commercial Use and Nature and of the Work, Amount and Substantiality of the Portion Used and the Effect on the Market.

This decision shows that the four factors are not compartmentalized and they need to be weighed in relation to each other: whether a use is transformative (first factor) may determine the nature of the work (second factor), which may in turn determine the effect on the market (fourth factor).

In the present case, Judge Ramos decided against a finding of fair use, as Fox News did not substantially transform the original work, and also because North Jersey Media Group Inc. still receives significant licensing revenue from the work in discussion. Unless the parties decide to settle, the issue of fair use will have to be decided in court.

See North Jersey Media Group Inc. v. Jeanine Pirro and Fox News Network, LLC.