Fox News has petitioned the Second Circuit Court of Appeals to overturn an adverse ruling over use of the iconic photograph from September 11, 2001, known as “Raising the Flag at Ground Zero.”  Rightly taking issue with the mostly unhelpful guidance left by Cariou v. Prince, Fox News and personality Jeanine Pirro (recently in the news for the interviews with her as part of HBO’s The Jinx about Robert Durst) have asked for the extraordinary step of appealing the denial of their motion for summary judgment.  While that motion probably won’t succeed in the short term for reasons discussed below, the issue will likely end up in the Court of Appeals at some point.  The application that the defendants suggest, however, seems like an exception that would swallow the rule.

The suit concerns a photograph taken by Thomas E. Franklin, a photographer who was working for the publisher of the New Jersey papers The Record and Herald News.  Franklin was assigned to cover the September 11 attacks, and he took a picture of three firefighters raising a flag near the ruins of the World Trade Center.  The intensive powerful image struck a chord amid the tragedy, and after being initially published in The Record, it gained considerable fame and the publisher registered a copyright in the photograph.

Jeanine Pirro, now the host of “Justice with Judge Jeanine,” has a Facebook page managed by Fox News.  On September 11, 2013, the Franklin picture appeared on that Facebook page, juxtaposed with the iconic Raising the Flag on Iwo Jima, a (staged) image that depicted the actual planting of the flag by U.S. Marines after capturing the island of Iwo Jima in World War II at enormous cost.

The production assistant who had posted the picture testified that she assumed the pictures were “everyone’s,” and while she did not articulate the legal basis for that nor talk to Fox’s legal department, she was essentially saying that she understood the image to be in the public domain.  The publisher disagreed, and sued for copyright infringement.  The publisher has rigorously enforced its asserted copyright in other lawsuits, and has licensed the image for more than $1 million collectively since its first publication.

The defendants moved for summary judgment on the question of fair use.  This means that after the exchange of documents, depositions, and other information in discovery, Fox News asserted that no facts material to the legal questions were in dispute, such that the result should follow as a matter of law.  To put it another way, if I agree with the plaintiff that the light was red when I ran it, summary judgment will probably result regardless of whether we agree if it was sunny or cloudy.  The former is a material fact, the latter, even if disputed, is immaterial.  Fox argued that the undisputed material facts compelled a finding of fair use.  The statutory fair use factors from 17 U.S.C. § 107 are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

As has been commented to death since Cariou, these analyses have almost always devolved into treating the first factor as dispositive, depending on the degree of “transformativeness.”

In this instance, the District Court was un-persuaded.  It framed the defendants’ argument thusly:

Defendants argue that the first factor favors a finding of fair use because the connection drawn between the events of September 11, 2001 and Iwo Jima can be “comfortably categorized as ‘comment.’” Defs. Mem. L. 14. According to Defendants, Tanner’s use of the phrase “#neverforget” connoted remembrance of, and signaled Fox News’ participation in an ongoing, global discussion concerning, the events of September 11, 2001.

This did not succeed first with respect to the copying of the Franklin image in and of itself:

As Plaintiff asserts—accurately in the Court’s view—the alterations to the Work are “barely discernable” unless the viewer is specifically prompted to look for them. Pl. Opp. Mem. L. 13-14. The Work is the clearly predominant feature of the Combined Image. Thus, a casual observer may believe that he is simply viewing the Work with only the hashtag added. Second Circuit authority suggests that more is required to “transform” an image.

The Court justified this reasoning by discussing the Cariou decision at length, as to the ways in which the Cariou photographs were physically altered in particular.  The Court did think that the combination of the images was a closer call, however:

Wholly apart from the image itself, there is also an issue as to whether the commentary Fox News 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 Fox News’ commentary, if such it was, merely amounted to exclaiming “Me too.”

In a nutshell, if the Fox News use of the combined images had a message, it was essentially the same as the original photograph, namely, to honor the victims of September 11 and the first responders who came to the scene.

Ordinarily, when a party files a motion that will end the case if successful, there can only be an appeal if the motion is allowed.  That is because appeals courts favor allowing appeals only of final judgments, to prevent piecemeal issues from going up and down over the life of the case.  There are exceptions, but in most instances a party that moved for dismissal or summary judgment that is disappointed must ask the trial court for permission to appeal.  The defendants have now done so.  The odds are certainly against it, but one never knows.

From here, however, it feels like the District Court got the question right, regardless of how one feels about Prince.  This was a news photograph, clearly copyrightable and later registered as such.  I think the Court’s summation of the “transformation” as “me, too” is right, and not pejoratively.  But if an iconic photo can be copied just because it is famous, then the copyright protection loses all meaning.

The case is important in a different sense, because of the testimony from the production assistant.  She was quite clear that it never occurred to her that she could not do this; in a culture of Instagram and Twitter, the implication of this testimony is not so much “everybody does it” but “this is how expression happens now.”  Be careful of this.  As long as there has been copyright, we have heard about how changing cultural mores and technology threaten to make copyright obsolete.  It is not.  If you are combining existing copyrighted material, you are out on a limb.  It may yet be fair use, but that is not a panacea.  Perhaps if the Second Circuit takes the case we’ll get more guidance, but I wouldn’t count on it in the short term, anyway.