11:54am PT by Eriq Gardner
Fox News Targets New Jersey Newspaper for Posting Clips of Its Political Coverage
Fox News is mounting a legal counter-offensive in a war with a North New Jersey-based newspaper publisher. On Thursday, the cable news giant submitted claims in court that the North Jersey Media Group, publisher of The Record and the Herald News, has violated its rights by posting online clips of its coverage of the Chris Christie bridgegate scandal, how authorities treated the Ebola outbreak and President Barack Obama's State of the Union address.
North Jersey Media Group is currently suing Fox News for violating its own copyright to a photograph of three firefighters raising the American flag at the ruins of the World Trade Center site on September 11, 2001. The photo was posted to the Facebook pages of Fox News personalities Bret Baier and Jeanine Pirro to commemorate the anniversary.
Fox News argued that it had "fair use" to the photo, but in February, a federal judge refused to grant its motion for summary judgment in the Pirro case.
Afterwards, Fox News made a move towards an appeal with an argument that "social media is transformative by design."
In April, the two sides reached a preliminary agreement on a settlement, but the deal fell through.
Now, instead of pushing for wide fair use to copyrighted material, Fox News is evidently swinging in the opposite direction in counterclaims that should provide warning to others posting the network's clips.
According to Fox News' counterclaims, after NJMG sued the website for The Record's post of a one minute and 53 second clip of Baier's shown above a caption reading, "Baier: Will MSNBC cover Christie exoneration."
What's even more interesting about this situation is that an investigation led Fox News to learn that the clip was hosted by another entity called News Distribution Network and embedded on NJMG's website. Fox News says NJMG displayed a 30 second advertisement whenever a user attempted to watch the clip and looks to hold the publisher liable for copyright infringement.
Fox News further adds that it sent a DMCA takedown notice to the News Distribution Network, which complied by removing the clip from its servers, but that NJMG failed to respond to a letter about "its display of the Special Report Segment."
According to Fox News' legal papers, "To this day, FNN has not received an explanation as to (1) when the Special Report Segment first appeared on NorthJersey.com; (2) how NJMG selected the Special Report Segment for display at http://video.northjersey.com; or (3) whether and how NJMG derived any revenues or other benefits from its display of the Special Report Segment."
There are other clips in contention including an interview by Chris Wallace with Christie about the Ebola outbreak for a story headlined, "Feds press NJ and NY to reconsider mandatory Ebola quarantine policy [video].” The clip is said to still be up, though Fox News doesn't say whether it sent a takedown notice.
Additionally, Fox News is suing over a clip of "POTUS Speech Coverage."
And Fox News is not merely asserting copyright claims over the use of clips. It's also alleging that NJMG has made a false endorsement under the Lanham Act. The cable network claims that use of its "Fox News," "Special Report" and "Fox News Sunday" trademarks alongside the publishers marks under a banner that reads "NorthJersey.com Studio" "are likely to cause confusion and mistake and are likely to deceive as to NJMG’s affiliation or association — of which there is none — with FNN."
Fox News is represented by Dori Ann Hanswirth at Hogan Lovells. Below are the full counterclaims. Fox News is also involved in a legal battle with a media monitoring service that indexes clips and allows users to share.