Fox News didn’t escape a lawsuit on “fair use” grounds for its use of 9/11 photos

This week, Fox News lost a bid to end a lawsuit over its use of one 9/11 photo.

Plaintiff, publisher of The Record and the Herald News alleged that Fox News’ television program Justice with Judge Jeanine posted on its Facebook page a now iconic photograph by Thomas Franklin.  The photo depicted three firefighters raising the American flag at the ruins of the World Trade Center site. This photo was juxtaposed with the classic World War II photograph of four U.S. Marines raising the American flag on Iwo Jima.  Plaintiff alleged that a production assistant Googled “9/11” and used on social media with the hashtag “#neverforget.”

Fox News raised the flag of “fair use.” Consequently,  New York federal judge Edgardo Ramos  examined the four factors that constitute a fair use of copyright and denied defendant Fox News’ summary judgment defense of fair use based on the last two factors.

Factor One: The nature of the underlying work -The judge found to favor a finding of fair use because the work “is factual and has been published.”

Factor Two: The amount and substantiality of the portion used– The judge further found another factor -the amount and substantiality of the portion used – to be neutral because it wasn’t clear “that Fox News’ use of any less of the Work would have ensured its audience’s recognition of the iconic photograph.”

Factor Three: Purpose and character of use– However, Fox News can’t prevail on summary judgment because the judge looked at the purpose and character of the work and found it not to be transformative.  The judge reasoned that the news organization was hardly the first to have ever thought of combining two photographs, that #neverforget was a “ubiquitous presence on social media that day.”Furthermore, the judge said that it was a question of material fact whether Fox News used the photo for the commercial purpose of promoting Pirro’s show as opposed to commemorating 9/11.

Factor Four: The effect of use upon the potential market– Regarding the last factor – the effect of the use upon the potential market of the photo -the judge stated plaintiff has raised more than $1 million in licensing revenue from the photo based on its existing licensing programs in place.   The judge said what Fox News did “poses a very real danger that other such media organizations will forego paying licensing fees for the Work and instead opt to use the Combined Image at no cost.”

So Now What?  

This ruling is significant in today’s social media driven culture. Here, the defendants used the image in a social media context and even used a hashtag.  This type of ruling is the reason why bloggers and websites are advised to never just search for an image and use it in a post or article or Twitter.  This can also apply in case of those using footage without permission for documentary productions hoping that they can get away on basis of fair use without proper clearances.

Article by Dorisa Shahmirzai, Esq.

Founding Attorney at IP Law Click



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