United States District Court, S.D. New York
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For North Jersey Media Group Inc., Plaintiff: William Irvin Dunnegan, Dunnegan LLC, New York, NY.
For Jeanine Pirro, Defendant: Dori Ann Hanswirth, LEAD ATTORNEY, Benjamin Andrew Fleming, Nathaniel Scott Boyer, Hogan Lovells U.S. LLP (nyc), New York, NY.
For Fox News Network, LLC, Defendant: Dori Ann Hanswirth, LEAD ATTORNEY, Benjamin Andrew Fleming, Hogan Lovells U.S. LLP (nyc), New York, NY.
AMENDED OPINION AND ORDER
Edgardo Ramos, United States District Judge.
Plaintiff North Jersey Media Group Inc. (" Plaintiff" or " NJMG" ) brings this action against Jeanine Pirro and Fox News Network, LLC (" Fox News" ) (collectively, " Defendants" ) under the Copyright Act, 17 U.S.C. § 101, alleging that Defendants infringed on Plaintiff's copyright in its now iconic photograph of three firefighters raising the American flag at the ruins of the World Trade Center site on September 11, 2001 (the " Work" ). Fox News posted a photograph that juxtaposed the Work with the classic World War II photograph of four U.S. Marines raising the American flag on Iwo Jima (the " Combined Image" ) on a Facebook page associated with Fox News' television program Justice with Judge Jeanine. Defendants contend that their posting of the Combined Image was protected " fair use" under the Copyright Act. See 17 U.S.C. § 107. Pending before the Court is Defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Doc. 31) For the reasons set forth below, Defendants' motion for summary judgment is DENIED.
I. Factual Background
The following facts are undisputed except where otherwise noted.
a. The Work
Plaintiff is the publisher of New Jersey-based newspapers The Record (Bergen County) and Herald News. Pl.'s 56.1 Counter-Stmt. ¶ 1. Thomas E. Franklin is a photojournalist who works for NJMG. Defs.' 56.1 Stmt. ¶ 3. On September 11, 2001, Franklin was assigned to cover the attacks on the World Trade Center. Pl.'s 56.1 Counter-Stmt. ¶ 4. Among the many photographs Franklin took that day was a photograph of three firefighters raising an American flag near the ruins of the World Trade Center. Id. ¶ 5. The Work was first published on page A32 of the September 12, 2001 edition of The Record. Pl.'s 56.1 Stmt. ¶ 7.
Franklin disclaims that in the immediacy of the moment he recognized the symbolic importance the Work would ultimately achieve. For example, on September 20, 2001, Plaintiff stated on one of its websites that Franklin did not " kn[o]w initially that [his] . . . instincts would grow into a national
symbol of patriotism." Defs.' 56.1 Stmt. ¶ 9. Similarly, a year later, in a September 11, 2002 article posted on Plaintiff's website, northjersey.com, Franklin stated:
[The] photo just happened, in a brief moment. I recognized it, shot it the best I could, and moved on, continuing to shoot the devastation. I did note the similarity to Joe Rosenthal's World War II photograph of the Iwo Jima flag-raising and was certainly aware of the symbolism of what these firefighters were doing, but in no way did I have time to analyze it. The events of the day were far more important, and in my mind, always will be.
Pl.'s 56.1 Counter-Stmt. ¶ 10. The parties do not dispute, however, that Plaintiff knew--at the latest--shortly after the time of original publication that the Work had historical importance. Defs.' 56.1 Counter-Stmt. ¶ ¶ 10, 15. Franklin has received numerous awards for the Work. Pl.'s 56.1 Stmt. ¶ 13.
Less than one month after the photograph was taken, on October 5, 2001, Jennifer Borg, NJMG's Vice President, General Counsel and Corporate Secretary, registered the Work with the U.S. Copyright Office. Id. ¶ 16. This was the first time Plaintiff had ever registered a copyright in an individual photograph with the Copyright Office. Id.
b. Fox News' Use of the Combined Image
Defendant Pirro hosts Justice with Judge Jeanine (the " Program" ), a news and commentary program that airs on the Fox News Channel. Pl.'s 56.1 Counter-Stmt. ¶ 12. Fox News also manages a Facebook page that is associated with the Program (the " Pirro Facebook Page" ). Id. ¶ 13. Fox News created the Pirro Facebook Page at least in part to promote the Program. See Defs.' 56.1 Counter-Stmt. ¶ 2.
According to Defendants, Georeen Tanner, a Fox News production assistant assigned to the Program, is also principally responsible for managing and posting content to the Pirro Facebook Page. Defs.' 56.1 Stmt. ¶ 13. As of September 11, 2013, Tanner had been working at Fox News as a production assistant for the Program for approximately three years. See Declaration of Georeen Tanner (" Tanner Decl." ) ¶ 4. She joined the Program upon graduating from Rutgers where she majored in journalism and media studies. Id. ¶ 2. While she has received no training in copyright law either in college or during her tenure at Fox News, she acknowledged in her deposition that she understood a copyright to be " [s]omething that is owned by someone else." Tanner Tr. 71:10. Tanner further testified that she had sought legal advice from Fox News' legal department regarding the fair use of photographs and videos on the Program a few times a month. Id. 72:22-23, 70:20-24. However, she had never consulted the legal department in connection with the posting of images to the Pirro Facebook Page. Id. 74:17, 69:17-23.
Tanner found the Combined Image on September 11, 2013, when she Googled " 9/11" in order to find an image to post on the Pirro Facebook Page to commemorate the events of September 11, 2001. Defs.' 56.1 Stmt. ¶ ¶ 19, 20; see Tanner Decl. ¶ 10. Defendants claim that Tanner had not previously seen the Combined Image, but that she immediately recognized the juxtaposition of the Work and Raising the
Flag on Iwo Jima. Defs.' 56.1 Stmt. ¶ 23. According to Defendants, Tanner chose to use the Combined Image precisely because of the parallel drawn between the first responders and the Marines. Id. ¶ 24. Tanner posted the Combined Image to the Pirro Facebook Page that day. Pl.'s 56.1 Counter-Stmt. ¶ 28. The decision to post the Combined Image was hers, and she did not seek the advice of the legal department or anyone else associated with the Program before doing so. Id.
Tanner did not alter the Combined Image other than to
add the phrase " #neverforget."  Defs.' 56.1 Stmt. ¶ 33. Tanner stated in her declaration that she posted the Combined Image to convey Fox News' participation in the global conversation taking place on social media that day. Id. ¶ 37. According to Defendants, hundreds of people commented on Fox News' posting of the Combined Image on Facebook. Id. ¶ 36.
The Combined Image does not include the entirety of the Work. Pl.'s 56.1 Counter-Stmt. ¶ 31. Portions of the top and the right-hand side of the Work do not appear in the Combined Image. Id. As a result, the firefighters occupy a larger portion of the Combined Image than they do in the Work. Id. The Combined Image also differs from the Work in that the resolution is lower and the scale is smaller. Defs.' 56.1 Stmt. ¶ 29; Pl.'s 56.1 Counter-Stmt. ¶ 29.
According to Defendants, the Combined Image found on Google did not contain any restrictions on copying. Defs.' 56.1 Stmt. ¶ 25. Defendants contend that Tanner did not seek permission from anyone to use the Combined Image because she did not believe--and still does not believe--that she needed permission to use the image for the purpose of making a commentary in remembrance of the events of September 11, 2001. Id. ¶ 35.
The events of September 11, 2001 were not discussed on the editions of the Program that aired on the Saturdays immediately preceding and following the posting, nor did the posting contain any information about the contents of the upcoming edition of the Program. Pl.'s 56.1 Counter-Stmt. ¶ 38. While Defendants claim that the posting did not contain any information as to when the next episode of the Program would be televised, Defs.' 56.1 Stmt. ¶ 38, Plaintiff asserts that a banner appearing across the top of the Pirro Facebook Page did, in fact, provide such information to users. Pl.'s 56.1 Counter-Stmt. ¶ 38.
On September 13, 2013, after learning that an attorney had contacted Defendant Pirro to request that Fox News remove the Combined Image from the Pirro Facebook Page, Defendants ...