Fox News Heads to a Jury Trial to Defend Its Use of 9/11 Photos on Facebook

The cable news network fights a newspaper publisher over what it posted to commemorate a tragic event in American history.

On Jan. 11, Fox News is set to go before a jury to defend copyright claims being brought by the North Jersey Media Group, publisher of The Record and the Herald News. The trial could explore fair-use boundaries in social media and shed light on such sensitive topics as revenue and social-media strategy for the highly rated cable news channel.

At issue in this dispute is a now-iconic photograph taken by Thomas Franklin of three firefighters raising the American flag at the ruins of the World Trade Center site. On the anniversary of 9/11, Fox News staffers posted the photo on the Facebook pages for shows hosted by Fox News personalities Jeanine Pirro and Bret Baier, alongside another photo of four U.S. Marines raising the American flag on Iwo Jima during World War II. The caption was "#neverforget."

North Jersey Media Group sees great value in its Franklin photograph and has brought copyright lawsuits against CBS Broadcasting, BBC Worldwide, A&E Television and other media outlets. It's the lawsuit against Fox News, though, that's traveled the furthest.

This past February, New York Federal Judge Edgardo Ramos denied Fox News a victory in the case, rejecting a summary judgment motion and the defendant's fair-use arguments. Although the judge ruled that Fox News' use of the photo wasn't transformative, the network still believes that its uses of "visually altered, significantly cropped and low-resolution versions" of the photos for the purpose of news commentary were fair. Fox News now has to convince a jury.

According to a pretrial statement filed on Monday, Fox News has some other defenses besides fair use it will attempt to assert.

For example, Fox News says the North Jersey Media Group has waived rights to bring a lawsuit and is equitably stopped from pursuing an infringement claim by providing a free copy of the photo for use on air during Fox News' remembrance of Sept. 11. Fox News also argues that Franklin, the photographer, provided license to use the photo when he appeared on the Sept. 11, 2011, edition of Studio B With Shepard Smith. In fact, Fox News contends that Franklin didn't shoot the 9/11 firefighters in a capacity as an employee at the North Jersey Media Group, and thus, the work-for-hire doctrine of copyright law doesn't apply. In other words, Fox News believes Franklin is the true owner of the copyright, not the plaintiff.

That's not all.

Fox News says it also licensed this 9/11 photo from the Associated Press and that the North Jersey Media Group was entitled to a $250 sublicensing fee. The plaintiff refused to accept payment from the AP; Fox News argues the rejection amounted to a failure to mitigate damages.

Additionally, Fox News may cast aspersions on its legal adversary. Presenting the defense that the North Jersey Media Group comes to its claims with unclean hands, the pretrial statement says, "In its prior uses and licensing of the Photograph, NJMG committed several transgressions relating to an affiliation with an entity known as The Bravest Fund and its attorney, William P. Kelly, who was investigated by the New York State Attorney General’s Office for allegedly embezzling money intended for charitable purposes."

Whether or not these defenses amount to a desperate bid to escape infringement liability remains to be seen. Fox News, it must be noted, is the same news organization that is relentlessly pursuing the media monitoring service TVEyes over allowing users to share show clips. In that case, Fox News has vigorously argued that fair use is limited, and upon victory has pushed for a broad injunction that would preclude the sharing of links to Fox News clips on social media.

The potential damages in this 9/11 photo case aren't particularly large. Even if Fox News is found liable for willful copyright infringement and has to pay the maximum statutory damages for its double misuse of the 9/11 photo, it would be paying $300,000 (plus possibly legal costs). In light of this, it's perhaps surprising that the case hasn't settled. Last April, the parties appeared to come to a deal, but the settlement fell apart. Now, both sides seem to be digging in their heels. For its part, Fox News says that if it is found liable, it should be seen as an "innocent" infringer with no more than $200 in damages.

The case is a copyright one, but the trial could offer up some revelations about Fox News. One of the witnesses scheduled to testify about a variety of issues, including Fox News’ revenues and its policies and procedures in relation to licensing the content of third parties, is Dianne Brandi, evp business and legal affairs. Also coming to the witness stand is Jason Ehrich, Fox News vp social media, to address the network's strategy in this space. The trial will also feature Dan Cohen, a senior producer of Fox News' Hannity show, plus other experts, as well as those affiliated with the North Jersey Media Group, who will speak about its business.

The trial is expected to last three to four days. William Dunnegan is the attorney representing the plaintiff, while Dori Ann Hanswirth is handling the defense.

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