In copyright infringement action involving allegations that Fox News posted to its Facebook page plaintiff’s 9/11 photograph of firefighters raising American flag near World Trade Center juxtaposed with iconic World War II Iwo Jima photograph along with hashtag #neverforget, district court denies Fox News’ motion for summary judgment on issue of fair use, finding use not sufficiently transformative and risk of harm to plaintiff’s ongoing licensing market.

This copyright infringement involves the use of a now-iconic photograph of three firefighters raising an American flag near the ruins of the World Trade Center on September 11, 2001, which was taken by Thomas Franklin, a photojournalist who works for plaintiff. The photograph was first published in the September 12, 2001, edition of plaintiff’s newspaperThe Record and later registered with the U.S. Copyright Office. Since then, plaintiff has generated more than $1 million in licensing revenues from the photograph. On September 11, 2013, Fox News posted an image on its Facebook page for the “Justice with Judge Jeanine” television program that combined a cropped version of plaintiff’s photograph, juxtaposed with the classic World War II photograph of four U.S. Marines raising the American Flag on Iwo Jima. The combined image did not include the entirety of the photograph (portions of the top and the right-hand side did not appear). The resolution was lower, and the scale smaller than the copyrighted photo. The image was not altered, however, other than to add the hashtag “#neverforget.” Defendants moved for summary judgment, contending that their posting of the work was protected under doctrine of fair use.

After considering the four fair use factors, the court denied defendants’ motion. With respect to the first factor – the purpose and character of use – the court noted that defendants did not simply copy the photograph wholesale, but it still could not conclude that the combined image was sufficiently transformative to merit protection as fair use. The court found an issue of fact as to whether the commentary Fox wished to convey created anything new at all, much less anything transformative. “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. Thus, to the extent Fox News’ use constituted commentary, it merely amounted to exclaiming ‘Me too.’”

The court found that while the second factor – the nature of the plaintiff’s work – weighed in favor of fair use, as it was a nonfictional rendering of a historical event created for news gathering, that factor is rarely determinative. The court found the third factor – the amount and substantiality of the portion used – to be neutral, as it was not clear that Fox could have conveyed its expressed purpose of commemorating the events of 9/11 by using a smaller portion of the photograph.

The court concluded that the fourth and most important factor – the effect of the use upon the market for or value of the original – weighed against a finding of fair use, because the continued demand for the photograph for editorial uses suggested “the purported use for commentary here was likewise paradigmatic of a primary market for the photograph.” Accordingly, the court denied defendants’ motion for summary judgment.