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With about a month to go until the 20-year anniversary of the Sept. 11 terrorist attacks in New York, a federal judge in New York has authored an absolutely epic copyright ruling that examines how various films and documentaries have used a photojournalist’s footage from that fateful day. What makes this 88-page summary judgment opinion especially fascinating is how the judge, when evaluating both famous films and obscure ones, comes to differing conclusions. Some of the defendants can rest easy. Others have already been declared infringers. And then there are some who are headed to trial.
Anthony Fioranelli brought this case all the way back in 2015. The defendants in the case include Paramount Pictures, A&E Television and BBC Worldwide. How his footage ended up in 16 films is a messy story, and the complication perhaps contributed to U.S. District Judge Vernon Broderick taking nearly two whole years to finally deliver summary judgment.
Following the attack on the World Trade Center, Fioranelli was one of four reporters allowed onto the site of the disaster. He quickly licensed his footage to local stations, and when he believed CBS to be using more than what he licensed, he sued. A settlement agreement resolved that initial controversy, but then CBS made its own 9/11 coverage available to others. CBS allowed BBC and a company called T3 to sublicense footage, and eventually, Fioranelli’s work filtered out into other works he didn’t directly authorize. Those included Oliver Stone’s World Trade Center, Celsius 41.11 (a conservative retort to Michael Moore’s Fahrenheit 9/11) and 9/11: Day That Changed the World.
In each of these works, Fioranelli’s footage occupies mere seconds of screen time, and the first major aspect of Broderick’s decision pertains to arguments that as such, the use was de minimis.
Broderick isn’t impressed with what he characterizes as a “mathematical argument,” which basically amounts to the proposition he do a temporal evaluation. The screen time may be brief, but that still can be actionable, and the judge finds another way to measure.
“I find that the brevity of the footage does not defeat its qualitative nature—in each of the sixteen films, the 9/11 Material is ‘in clear focus’ and occupies, in all but two films, the entirety of the screen,” he writes.
So the judge moves to the question of fair use, and it’s here where certain defendants find themselves to be in a more fortunate position than others. The judge also is influenced by the big decision a few months ago from the 2nd Circuit concerning Andy Warhol, specifically guidance that a secondary work only rises to being transformative if it’s “something more than the imposition of another artist’s style on the primary work.”
Applied here, that means when documentaries are using Fioranelli’s 9/11 footage, it can’t simply be for the same purpose that the footage was originally used in newscasts.
“I find the original purpose of the 9/11 Material no different than the purposes of the uses in Miracle Survivor, Crime Scene 9/11, DTCW, Stairway B, Relics, How it Was, and the CBS 9/11 Newsreels,” writes Broderick. “The 9/11 Material is included in those seven films to depict what the original work itself illustrates—what happened at Ground Zero on September 11, 2001, and over the course of the following days, including the recovery efforts.”
Better luck is had by certain producers using the footage to build some sort of thesis.
“[A] reasonable juror could be persuaded by the argument that the purpose of the uses in ZERO, The Conspiracy Files, and Death Ray is to educate viewers about conspiracy theories surrounding 9/11, an arguably different purpose than the original aim of proving a ‘photographic memory of the events of 9/11 for posterity,'” states the opinion at a later point.
And even better is how Oliver Stone briefly used the footage in World Trade Center and a featurette about the making of the movie.
In the motion picture, a couple of seconds of the photojournalist’s footage were used in showing how families watched the events of that day unfold on live television and how they wondered whether their loved ones were safe. The judge sees that as transformative.
As for Stone’s other use, the judge notes that Stone described how he restricted 9/11 footage to television playback and writes, “I find that Stone’s commentary in Featurette imbues the 9/11 Material with ‘new insights and understandings’ concerning the rationale behind Stone’s cinematic choices and use of the 9/11 Material … In other words, Featurette is in essence a behind-the-scenes view of WTC from Stone’s perspective, and clearly transformative.”
Paramount beats the copyright claim.
Here’s the entire decision — a mixed ruling — that also rejects a breach of contract claim against CBS for being outside the statute of limitations.
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