Law360, New York (March 8, 2016, 10:32 AM ET) -- The controversy between North Jersey Media Group Inc. and Fox News Network LLC began three years ago when, on the anniversary of September 11th, Fox News placed on a Facebook page the now famous photograph of firefighters hoisting the American flag at the ruins of the World Trade Center.  Next to that photograph, Fox posted the iconic image of US Marines raising the flag at Iwo Jima.  Beneath the two images appeared the hashtag: “#neverforget.”

North Jersey Media, which owns the photograph of the fire fighters, sued Fox in the Southern District of New York for copyright infringement.  Fox moved for summary judgment, arguing that because the “visually altered, significantly cropped, and low-resolution versions” of the original photograph were for purposes of news commentary or reporting, they were protected by the “fair use” provision of the Copyright Act.  The court rejected the argument, holding that Fox’s changes to the photograph were insufficiently transformative to constitute fair use.  On Feb. 16, just before trial, Fox settled.

The problem with the court’s ruling, which now stands as precedent, is that it undermines a central paradigm of constitutional law — the free marketplace of ideas.  Drawn from the philosophical writings of John Milton and John Stuart Mill, the paradigm was introduced into US Supreme Court jurisprudence by Oliver Wendell Holmes.  For Holmes, the public exchange of ideas was essential to the discovery of truth and, ultimately, the effectiveness of government. Echoing Holmes, Louis Brandeis wrote, in Whitney v. California, that “[i]n frank expression of conflicting opinion, lies the greatest promise of wisdom in governmental action; and in suppression lies ordinarily the greatest peril.”

An obvious challenge to an accessible, public discussion of ideas is copyright law.  An individual who owns the copyright to a work of literature, a painting, photograph, or musical composition can limit its use to specific functions or remove the work from public circulation altogether.

To contain the threat that copyright law poses to the free flow of ideas, courts draw a line: Basic themes, motifs, systems, and concepts are beyond the scope of the copyright law, while the detailed expression of those ideas are subject to private control under the copyright law.  Thus, the general concept of young lovers encountering resistance from feuding families or communities is open to public use; the expression of that concept in the form of "Romeo and Juliet" and "West Side Story" is not.

In recent years, legal scholars have voiced concern that the demarcation between ideas and the expression of ideas has been breached, with courts allowing private parties expanded and unjustified control over ideas.  The Fox decision is an example of this transgression: The use of the photograph centered on the idea underlying the photograph — that the firemen, in unconsciously mirroring an earlier photograph of the soldiers at Iwo Jima, called to mind the battles of World War II — while the photographer’s contribution to that idea (expressed in the texture, color and cropping of the image) was of comparatively little importance.

The dominance of the idea of the photograph, versus the idea’s aesthetic elaboration, was enhanced by the placement of the photograph in a forum where, like other social media, discussion is conducted through the shorthand of visual images (photographs, videos, emoticons, gifs and memes).  In these forums, it is the symbolic value of the images and not their aesthetic effect which is significant to those sending and receiving the images.  Johanna van Dyck, professor of comparative media studies and former dean of the University of Amsterdam, has observed that “digital cameras, cameraphones, photoblogs and other multipurpose devices are used to promote the use of images as the preferred idiom of a new generation of users.”

The Fox decision creates the precedent for a broad restraint on this new means of communication.

Even if the court were correct in holding that the Copyright Act applied to Fox’s use of the photograph, there is an exception to that statute which applies in this case.  In Baker v. Selden, 101 US 99 (1879), the Supreme Court was presented with the question of whether a manual which described a novel system for bookkeeping could be copyrighted.  The Court ruled that it could not, explaining that when an idea (the bookkeeping system) is so dominant as to be indistinguishable from the expression of the idea (the manual) or when an idea can only be expressed in a limited number of ways, the expression cannot be copyrighted.  The court held that if, under such circumstances, private parties were allowed to control the expression of the idea, they would in effect control the idea itself.

Referred to as the merger doctrine, it was returned to by the Supreme Court as recently as Harper & Row v. Nation Enterprises.  That case arose after The Nation magazine published, without permission of Harper & Row, verbatim excerpts from the memoir of former President Gerald Ford.  The court ruled that certain passages of the memoir, such as Ford’s description of the White House tapes as the “smoking gun,” were so intimately connected to the history which Ford was recounting that they could not be a basis for liability under the Copyright Act.

The merger doctrine is easily extended to images exchanged in social media.  In Fox, for example, it is obvious that there were few if any forms in which the idea of the photograph could have been expressed, other than by a photograph in which the firemen were positioned in a manner similar to the Marines at Iwo Jima. Fox’s juxtaposition of the two photographs and the phrase “#neverforget” reinforced this.

By stiffening the distinction between ideas and expressions of idea and by extending the merger doctrine to images used in the context of social media, the courts will make a significant contribution to guaranteeing the sort of free marketplace of ideas which Holmes and Brandeis envisioned.