North Jersey Media Group v. Pirro

Citation
North Jersey Media Group, Inc. v. Pirro, 2015 WL 542258 (S.D.N.Y. Feb. 10, 2015) (full-text).

Factual Background
Plaintiff North Jersey Media Group, Inc., owner of the Thomas E. Franklin photograph of firemen raising the American flag at the ruins of the World Trade Center site on September 11, 2001, claimed copyright infringement when defendant Fox News Network's employee posted an image on Facebook that juxtaposed plaintiff's firefighter photograph with the World War II photograph of Marines raising the flag on Iwo Jima. The Facebook page on which the combined image appeared belonged to Fox's Justice with Judge Jeanine program, hosted by co-defendant Jeanine Pirro.

The issue before the court is whether defendants' reproduction of plaintiff's photograph on a Facebook page was fair use.

Trial Court Proceedings
The court determined it could not conclude as a matter of law whether defendants' reproduction of plaintiff's photograph was fair use. The court found that, although defendant's use was not transformative, material questions of fact existed concerning the purpose of the use.

It further found that the fourth fair use factor, the effect of the use upon the potential market for or value of the copyright work, weighed against a finding of fair use. In assessing that factor, the court noted that plaintiff "maintains an active licensing program for the photograph, including by licensing the [photograph] to media entities for editorial use, precisely the type of use [d]efendants urge they intended here."

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