74 F. Supp. 3d 605
S.D.N.Y.2015Background
- NJMG (plaintiff) owns a famed September 11, 2001 photograph by Thomas E. Franklin of three firefighters raising a U.S. flag (the "Work"), registered with the Copyright Office in October 2001.
- On September 11, 2013, Fox News (defendant) posted a "Combined Image" on Judge Jeanine Pirro’s program Facebook page juxtaposing Franklin’s Work with Rosenthal’s Iwo Jima photograph and adding the hashtag "#neverforget."
- The Combined Image was cropped, lower resolution, smaller in scale, juxtaposed with the Iwo Jima image, and included the hashtag; Fox deleted the post two days later after notice.
- NJMG has licensed the Work widely and has generated substantial licensing revenue (over $1 million historically); editorial licensing remains an active market.
- Defendants moved for summary judgment asserting the Facebook post was protected fair use; the court denied summary judgment, finding factual disputes and that the fair-use factors weighed against resolving the issue for defendants as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fox’s use is "transformative" under fair use (Factor 1) | Use was non-transformative; it repackages NJMG’s iconic image and functions as promotion, not new commentary | Juxtaposition with Iwo Jima + hashtag produced commentary/ remembrance; asserted purpose was comment, not substitution | Court: Material dispute — alterations are minimal; not sufficiently transformative as a matter of law; issue of fact remains (no summary judgment for defendants) |
| Whether use was commercial (Factor 1, subfactor) | Fox used image to promote its program and engage followers (commercial purpose) | Fox claims use was expressive/commentary and any commercial link is attenuated; no direct revenue shown | Court: Genuine issue of material fact whether post was promotional/commercial; cannot decide on summary judgment |
| Nature of the Work — creative vs. factual & published status (Factor 2) | Photograph is creative, a product of photographer’s artistry; favors protection | Photo is factual photojournalism of a public event and already published, favoring fair use | Court: Factor 2 favors fair use (photo is factual, published), but not dispositive |
| Market harm / effect on licensing (Factor 4) | Unauthorized posting usurps editorial licensing market and threatens licensing revenue for typical media uses | No proof of lost licensing revenue from this single posting; argues no usurpation shown | Court: Factor 4 weighs against fair use — Combined Image risks usurping NJMG’s existing editorial/licensing market; important factor here |
Key Cases Cited
- Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) (analyzing when appropriated artworks are sufficiently transformative)
- Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006) (finding fair use where secondary work had new expression, meaning, and purpose)
- Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) (establishing central role of transformativeness in fair-use analysis)
- Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) (holding market harm is a critical component of fair-use inquiry)
- Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) (permitting full reproduction where use was strongly transformative in context of historical timeline)