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For the second time in the past year, Fox News has been brought to court over an iconic — and copyrighted — image of three firefighters raising the American flag at the ruins of the World Trade Center site on September 11, 2001. This time, the plaintiff objects to a copy of the photograph posted on the Facebook page of Fox News host Bret Baier.
Leading the copyright charge is the North Jersey Media Group, publisher of The Record and the Herald News and a familiar face these days in New York and New Jersey courtrooms. The plaintiff has previously sued CafePress, Sarah Palin and many others for use of the copyrighted photo.
The earlier lawsuit against Fox News targeted the posting of the image on the Facebook page of Jeanine Pirro. A production assistant found the image through a Google image search and put it up on the twelfth anniversary of 9/11 along with the hashtag, “#neverforget.”
That case is still ongoing and is perhaps illustrative of how media organizations must often tug copyright law in opposing directions.
Fox News argues in a summary judgment motion that “fair use creates the breathing space needed to protect expression” and that it used the 9/11 photo for the purposes of commentary. Compare that to Fox News’ arguments why fair use doesn’t apply to a media-monitoring service that it sued for indexing and distributing its video clips. (In that case, Fox News suffered a big legal loss two weeks ago.)
However, the North Jersey Media Group is surely in the same position of being on both sides of the fair use debate, depending on the circumstances. It aims to punish Fox News for willfully infringing its copyrighted photo yet its reporters at The Record and the Herald News surely couldn’t do their jobs without access to fair use allowances.
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