On February 10, 2015, the Southern District of New York denied Fox News’ motion for summary judgment in a copyright lawsuit involving the posting of a copyrighted image on its Facebook page. North Jersey Media Group, Inc. v. Jeanine Pirro & Fox News Network, LLC, Civil No. 1:13-cv-07153 (S.D.N.Y.). This decision serves as a reminder on the importance of social media policies and the pitfalls of using images on social media without getting permission from the copyright holder.
North Jersey Media Group Inc. (“NJMG”) filed this lawsuit in 2013 against Jeanine Pirro and Fox News Network, LLC (“Fox News”) alleging that Fox News infringed on NJMG’s copyright in its now iconic photograph of three firefighters raising the American flag at the ruins of the World Trade Center site on September 11, 2001. In particular, NJMG took issue with Fox News posting the copyrighted photograph juxtaposed with the classic World War II photograph of four U.S. Marines raising the American flag on Iwo Jima on a Facebook page associated with Fox News’ television program Justice with Judge Jeanine. A Fox News’ production assistant had found the combined image when doing a Google search and copied the image to the Facebook page for Justice with Judge Jeanine on September 11, 2013.
Although NJMG widely licensed the photograph to television and print media outlets (NJMG reportedly raised more than $1 million in licensing revenue from the photograph), Fox News did not seek a license from NLMG. Fox News contended that its posting of the combined image was protected “fair use” under the Copyright Act. After the lawsuit was filed, Fox News filed a motion for summary judgment, which was denied by the district court. In its decision, the court evaluated the four fair use factors, and could not conclude as a matter of law that Fox News’ posting of the photograph was fair use. The fair issue defense should still be available to Fox News at trial.
Factor 1: The Purpose and Character of the Use
The court found that material questions of fact existed regarding the first factor. Fox News argued that its use of the photograph was not “commercial” because there was no evidence that Fox News captured any revenues as a direct consequence of its use. NJMG argued that Fox News’ use of the photograph constituted advertising and was thus commercial. The court analyzed the deposition testimony of the Fox News production assistant who posted the photograph and determined there was a question of fact as to whether Fox News posted the photograph for the purely expressive purpose of commenting on the events of September 11th, or whether it did so for the commercial purpose of promoting its television program. Thus, the court was unable to conclude that this factor weighed in favor of either party.
Factor 2: The Nature of the Work
The court found that the second factor weighed in favor of fair use. In particular, the court found that while the photographer exhibited great artistry in carrying out his task in taking the photograph, it was a non-fictional rendering of an event of historical importance. In sum, because the photograph was factual in nature, this factor favored a finding of fair use.
Factor 3: The Amount and Substantiality of the Portion Used
The court found that the third factor was neutral. Even though Fox News copied essentially the entire copyrighted image, given the express purpose of commemorating the events of September 11th, the court could not conclude that this factor favored either party.
Factor 4: The Effect of the Use Upon the Market for or Value of the Original
The court found that the fourth factor – which it found the most important – weighed against fair use. Fox News argued that this factor favored a finding of fair use because NJMG had not produced evidence that it lost any licensing revenue as a result of the use, or that Fox News ever attempted to oust NJMG from its licensing market, let alone that it usurped such a market. NJMG countered that the unauthorized use damaged the licensing market for the photograph, and that widespread copying of the same sort would greatly diminish NJMG’s copyright. The court found that Fox News’ copying of the copyrighted photograph posed a “very real danger that other such media organizations will forego paying licensing fees” and “the posting on the [Justice with Judge Jeanine] Facebook Page poses a much greater danger to NJMG than simply the loss of licensing revenues from this one-time use.” Accordingly, this factor weighed against a finding of fair use.
Conclusion
While Fox News may still prevail at trial on its fair use defense, this case serves as a reminder on the importance of having social media policies in place and making sure employees are trained on such policies. Companies may want to consider reminding their employees on the hazards of using images and photographs that are available on the Internet. To that end, companies may want to remind their employees that just because an image or photograph is publicly available on an Internet site does not mean that they can freely copy and post the image or photograph on company social media accounts.
