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September 11, 2001, is one of the most solemn dates in American history. It’s also been big business for photographers and their publishers who were shooting the ruins of the World Trade Center site on that day. This week, Fox News lost a bid to end a lawsuit over its use of one 9/11 photo while CBS Broadcasting, BBC Worldwide, A&E Television and other media outlets were hit with a separate lawsuit over use of a different 9/11 photo.
First, the lawsuit against Fox News.
It was filed by the North Jersey Media Group against the cable network’s personality Jeanine Pirro in October 2013 and amended to name Fox News itself in Feb. 20.
According to the plaintiff, publisher of The Record and the Herald News, a now iconic photograph captured by Thomas Franklin of three firefighters raising the American flag at the ruins of the World Trade Center site was posted to the Facebook page of Fox News’ television program Justice with Judge Jeanine, juxtaposed with the classic World War II photograph of four U.S. Marines raising the American flag on Iwo Jima. The photo was found by a production assistant who Googled “9/11” and to commemorate the 12th anniversary of 9/11, used on social media with the hashtag “#neverforget.”
In defense of the lawsuit, Fox News raised the flag of “fair use,” which caused New York federal judge Edgardo Ramos to examine the four factors that constitute a fair use of copyright.
In an opinion on Feb. 9, the judge finds one of the factors — the nature of the work —to favor a finding of fair use because the work “is factual and has been published.” The judge finds another factor — the amount and substantiality of the portion used — to be neutral because it wasn’t clear “that Fox News’ use of any less of the Work would have ensured its audience’s recognition of the iconic photograph.”
But Fox News can’t prevail on summary judgment because the judge looks at the purpose and character of the work and finds it not to be transformative, reasoning that the news organization was hardly the first to have ever thought of combining two photographs, that #neverforget was a “ubiquitous presence on social media that day,” and that “Fox News’ commentary, if such it was, merely amounted to exclaiming ‘Me too.’ ”
Additionally, the judge said that it was a question of material fact whether Fox News used the photo to commemorate 9/11 or for the commercial purpose of promoting Pirro’s show. And as far as the last factor — the effect of the use upon the potential market of the photo —the judge points to the fact that NJMG has raised more than $1 million in licensing revenue from the photo, saying what Fox News did “poses a very real danger that other such media organizations will forego paying licensing fees for the Work and instead opt to use the Combined Image at no cost.”
The judge denies a determination that the photo was fairly used on that basis, possibly putting the case on track for trial. A Fox News spokesperson says the network will continue to vigorously defend the case.
But that’s not the end of the story because just a day before this decision came out, a photographer named Anthony Fioranelli filed his own lawsuit. According to the complaint filed in New York, he was one of four reporters allowed into the site of the disaster that day and he risked life and limb to capture the ruins.
Fioranelli says he offered a one time use of his work to CBS for a news show, and that licensing agreement expired in 2002. A few years later, he adds, “CBS began an extensive program of sublicensing Plaintiff’s works to at least 15 companies and to well-known television broadcasting outlets through such sublicensees, such as Netflix, the Smithsonian Channel, the British Broadcasting Company and many others.
He alleges that his work has appeared in works including 9/11: The Day That Changed the World, The Miracle Survivor, Crime Scene 9-/11, Rush to War, Paramount Pictures’ World Trade Center, 9/11 Liars, How It Works: Voices of 9/11, History Channel 9/11 Special and other TV shows, films and documentaries.
“Upon information and belief in or about May 2014 CBS has attempted to inform all of its sublicensees of the illegal nature of the sublicensing program and has attempted to stop all further uses by such sublicensees and their retailers from that time forward,” states the complaint. “Negotiations with CBS by Plaitniff reveal that some, perhaps all, of such future use has been terminated. But that is unclear.”
CBS hasn’t responded yet to a request for comment.
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