SDNY Rejects Fox News’ “Fair Use” Defense After Network Posts 9/11 Image on Facebook

A television network may be liable for posting copyrighted images to its social media pages, particularly if such images are used to promote programming, rather than report the news.

On February 10, 2015, the United States District Court for the Southern District of New York denied Fox News’ motion for summary judgment in a copyright infringement dispute related to the posting of an image on its Facebook page. N. Jersey Media Group, Inc. v. Jeanine Pirro & Fox News Network, LLC, 2015 U.S. Dist. LEXIS 15912 (S.D.N.Y. Feb. 10, 2015).

Plaintiff North Jersey Media Group alleged that Fox News infringed its “now iconic” photograph of three firefighters raising the American flag on the ruins of the World Trade Center on September 11, 2001. To date, the photo, originally taken by photojournalist Thomas E. Franklin, has raised more than $1 million in licensing revenue. To commemorate the twelfth anniversary of the attack, a production assistant for Justice with Judge Jeanine, a news and commentary program on Fox News, searched the Internet to find an illustrative photo of the events of 9/11. Upon finding Franklin’s work, she immediately recognized its similarities to the famous photograph displaying four U.S. Marines raising the flag on Iwo Jima during World War II. Along with the phrase “#neverforget,” the two images were combined--unaltered--and posted to the Justice with Judge Jeanine Facebook Page.

The production assistant claimed she sought legal advice from the legal department in the past regarding use of photographs on the broadcast, but never in connection with posting images to the program’s Facebook page. Fox News claimed that because the image was never discussed on the news program itself, and because the post simply “signaled Fox News’ participation in an ongoing, global discussion concerning the events of September 11, 2001,” the use amounted to fair use, thus precluding a finding of infringement under the Copyright Act. However, after examining the four, non-exclusive factors used in determining fair use, the SDNY rejected the network’s motion for summary judgment.

With respect to the first factor, the purpose and character of the use, the court held that it did not weigh in favor of either party as a matter of law. The cropping of the image, using a lower resolution, juxtaposing another image, using a smaller scale, and adding a phrase, amounted to alterations that were “barely discernable” and not transformative enough to merit fair use protection. The hashtag commentary of “never forget,” for example, did not create new insights and understandings required to find a transformative purpose, according to the court. The court also found there were genuine issues of material fact regarding whether the image was posted for the expressive purpose of spurring commentary on 9/11, or for the commercial purpose of promoting the program.

The court found that the second factor, the nature of the work, favored Fox News because the photograph was created for newsgathering. As a “non-fictional rendering of an event of utmost historical importance,” the photographer did not stage his subjects, but  took the photograph in his job capacity as a news photographer.

The third factor, the amount and substantiality of the work used, was also neutral. It was unclear to the court whether use of any less of the photograph would have ensured audience recognition.

The court found that the fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work,” weighed in favor of the plaintiff. Because the plaintiff had raised a significant amount of revenue from licensing the work, Fox News’ unauthorized use of the work “poses a very real danger that other such media organizations will forego paying licensing fees…” the court wrote in its opinion.

In light of this decision, companies using social media may want to ensure that all posts are preapproved by their legal departments.