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On Thursday, Fox News requested a federal judge’s permission for an interlocutory appeal in a dispute concerning how it used a 9/11 photograph on Facebook. If given the green light, the cable news network would be leading an attempt to allow social media users expansive fair use to copyrighted works.
The fact that a Rupert Murdoch company is behind the charge is surprising. His News Corp. once considered preventing Google from indexing newspapers like The Wall Street Journal, and Fox News itself is currently on the legal warpath against TVEyes, a media monitoring service that a judge last year found to have transformative value against vigorous objections.
But that was before a judge ruled last month that a fair use defense couldn’t allow Fox News to escape a lawsuit brought by the North Jersey Media Group, publisher of The Record and the Herald News and owner of a photograph of three firefighters raising the American flag at the ruins of the World Trade Center site.
On September 11, 2013, the photo of what had occurred twelve years prior 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.
New York federal judge Edgardo Ramos ruled on Fox News’ summary judgment motion that the purpose and character of the use — one of the four factors comprising an examination of fair use — cut against the network. Just combining the two photos wasn’t enough, the judge said, nor was placement next to the photos of the hashtag #neverforget, which the judge said was a “ubiquitous presence on social media that day.” Further the judge opined that “Fox News’ commentary, if such it was, merely amounted to exclaiming ‘Me too.'”
Google indexes and media monitoring services are one thing, but in its bid for an appeal, Fox News says there is something special about posts on social media, especially Facebook, which it says is “an inherently transformative context.”
“Unlike the legacy media known to Congress at the time [of passage of the 1976 Copyright Act], social media is transformative by design,” states Fox News’ memorandum. “Every post is an invitation for others to comment and criticize; every message and image invites reciprocal expression. A context-sensitive test for transformativeness, then, will necessarily account for the fact that Facebook and other social media sites are by design used for purposes of ‘comment’ and ‘criticism,’ and such a test will inevitably favor uses on social media.”
Fox News goes on to argue that a finding of transformativeness would also lessen the likelihood of cognizable market harm — another factor in the analysis of fair use.
A judge either needs to grant certification of the interlocutory appeal — meaning, one before a trial takes place —or the 2nd Circuit would have to issue a writ of mandate. In its brief, Fox News throws itself into the supposed transformational value of social media by telling the judge that the “sheer volume of activity on social media all but guarantees that fair use questions will recur,” citing statistics that the average Facebook user creates 90 pieces of content each month and that Facebook users upload nearly a billion photos each week. (The stats are a few years old so presumably that number has climbed while curiously not prompting an appeals court to yet examine the issue Fox News is exploring.)
Earlier this month, Fox News struck out in an attempt to add an affirmative defense to the lawsuit that it had license to the photo through its relationship with the Associated Press. Currently, there’s no trial yet scheduled.
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