Fox's Fair Use Defense for Flag-Raising Facebook Post Not Resolved on Pleadings

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By Anandashankar Mazumdar

Feb. 13 — Fox News's assertion that its use of a newspaper photo of firefighters raising a flag at the site of 9/11 attacks in New York was fair use could not be resolved at the summary judgment stage, the U.S. District Court for the Southern District of New York ruled Feb. 10.

Denying Fox's motion for summary judgment, the court said that there were too many outstanding issues to grant judgment on the pleadings.

The court cast doubt regarding whether Fox had contributed any new commentary when it posted the flag-raising pic along with the iconic Iwo Jima flag-raising image, adding only “#neverforget.”

Indeed, someone else had put the images together, and, thus, Fox was really just saying “me too,” the court said.

North Jersey Shooter Takes Iconic Shot 

North Jersey Media Group Inc. of Woodland Park, N.J., is a publisher of a chain of community newspapers circulated in northern New Jersey—including two daily newspapers, The (Bergen County) Record and The (North Jersey) Herald News and more than 40 weekly papers—and it also operates the, and websites.

On Sept. 11, 2001, staff photographer Thomas E. Franklin shot a picture of three firefighters raising a flag at the site of the World Trade Center, which became an iconic image and was extensively licensed.

Jeanine Pirro is a television personality who appears on “Justice with Judge Jeanine” on the Fox News Channel.

On Sept. 11, 2013, Fox News posted a cropped copy of the flag-raising image on the Judge Jeanine Facebook page shown in juxtaposition with an image of the Iwo Jima flag-raising, adding the tag “#neverforget.” North Jersey objected to this the following day, and Fox took the image down four days later.

A month later, North Jersey sued Pirro and Fox News Network LLC, alleging copyright infringement. Fox News and Pirro moved for summary judgment, asserting that their use constituted fair use.

(Click image to enlarge.)

graphic for 2/18/15 PTCJ story

Fair Use Factors Can't Be Resolved 

The court applied the four-part test for fair use set forth in the Copyright Act of 1976, 17 U.S.C. §107.

Under the first fair-use factor, which assesses the purpose and character of Fox's use of the image, the court said that it could not conclude that the use was transformative as a matter of law.

To the extent that Fox had altered any content or message, the court said, it was “only minimally.”

Furthermore, the court said that the assertion that Fox had created any new commentary could not be resolved at the summary judgment stage, much less whether it was a transformative use.

“On the particular facts of this case—as it involves the secondary use of a secondary use—it can be argued that no part of the Combined Image constitutes an original idea on the part of Defendants; some other person first thought to combine the two photographs, and the phrase ‘#neverforget' was a ubiquitous presence on social media that day,” the court said. “Thus Fox News' commentary, if such it was, merely amounted to exclaiming ‘Me too.' ”

Additionally, under the first factor, the court said that it could not determine at this stage whether Fox's use was a commercial use or whether it was commentary.

Given all these outstanding questions, the court said that it could not decide whether this factor weighed either for North Jersey or for Fox.

Turning to the second factor—the nature of the plaintiff's work—the court said that it weighed in favor of a finding of fair use, noting that it was “a non-fictional rendering of an event of utmost historical importance.”

The court noted that the photographer Franklin “did not create the scene or stage his subjects” and that it was “a quintessential example of photojournalism.”

The third factor—the amount and substantiality of the work used—weighed for neither side, the court said.

“Given the express purpose of commemorating the events of 9/11, it is not clear that Fox News' use of any less of the Work would have ensured its audience's recognition of the iconic photograph,” the court said.

However, the final factor—the impact of the use on the market for the original—weighed in North Jersey's favor, the court said. The court emphasized that North Jersey has extensively licensed use of the image by numerous parties, including other news organizations, and that demand for such licensing continues to this day.

Taking the factors together, the court said that it could not conclude without a full evidentiary process whether Fox News's use of the image constituted fair use. The court thus denied Fox News's motion for summary judgment.

The court's opinion was issued by Judge Edgardo Ramos.

North Jersey Media Group was represented by Dunnigan & Scileppi LLC, New York. Pirro and Fox News were represented by Hogan Lovells US LLP, New York.

To contact the reporter on this story: Anandashankar Mazumdar in Washington at

To contact the editor responsible for this story: Tom P. Taylor at

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