To commemorate the anniversary of the 911 attack, a producer for Fox News personality Judge Jeanine Pirro posted to the Facebook page that promotes Judge Pirro’s show an image the producer had found online that featured the iconic photograph of NY firemen raising an American flag at Ground Zero next to a photograph of soldiers raising an American flag at Iwo Jima. With this post, the producer simply added the text “#neverforget.”
The owner of the copyright in the firemen photo sued for copyright infringement and Fox News moved for summary judgment on the grounds it was a protected fair use. New York federal judge Edgardo Ramos rejected the motion, holding that the fair use factors either did not favor defendant or there were questions of fact as to those factors, precluding summary judgment.
As for the first fair use factor, the court held that the use was not particularly transformative and it was a question of fact if the use was commercial. On the fourth factor, the court seemed to be concerned that allowing this kind of use would severely damage the licensing market for the photo.
Fox News has filed an interlocutory appeal, contending among other things that use on social media is inherently transformative by changing the context in which the work is used and because of the communication inviting nature of social media posts. How will this turn out? As Judge Pirro might say on her show: stay tuned.