In Pirro, Fox News posted a photograph that juxtaposed a photograph of three firefighters raising an American flag at the ruins of the World Trade Center site on September 11, 2001, with another iconic photograph taken during World War II of four U.S. Marines raising the flag on Iwo Jima. The Court referred to the posting of the two photos side-by-side as the "Combined Image." Interestingly, the defendants did not create the Combined Image; rather, a production assistant found the Combined Image on Google. The production assistant posted the Combined Image, unaltered, on a Facebook page that promotes the show Justice with Judge Jeanine, and added the phrase "#neverforget."
Two days after the Combined Image was posted on Facebook, a lawyer for the defendants contacted Ms. Pirro and requested that the photograph be removed. The defendants complied and deleted the Combined Image from the Facebook page. Notwithstanding, less than a month later, the plaintiff filed a lawsuit against the defendants.
The defendants argued that the Combined Image was protected under the fair use doctrine, which is codified in the Copyright Act of 1976. 17 U.S.C. ยง107. Under the fair use doctrine, courts must consider four factors: (1) purpose and character of the use; (2) nature of the copyrighted work; (3) amount of the work used in relation to the whole; and (4) effect of the use of the work on the potential market for the work. Id. As the U.S. Supreme Court explained in the seminal case Campbell v. Acuff-Rose Music, Inc., all of the factors must be considered together; no one is determinative. 510 U.S. 569, 578 (1994).
After evaluating the four factors, the Court could not find that the fair use doctrine protected the Combined Image as a matter of law. The Court first found that the Combined Image was not sufficiently transformative. Characterizing this element as the "heart of the fair use inquiry," the Court explained that use of the phrase "#neverforget" to caption the photo juxtaposed with the World War II photo was insufficient. Interestingly, the Court commented that "the phrase '#neverforget' was a ubiquitous presence on social media that day [September 11, 2013]." In fact, the Court stated that "Fox News' commentary . . . merely amounted to exclaiming 'Me too.'" Query whether captioning the Combined Image with a more unique # would have sufficiently transformed the copyrighted work to weigh in favor of fair use protection? Or, what if the production assistant had taken the Combined Image and filtered it with Instagram?
Addressing the remaining factors, the Court found that: (1) whether the defendants' use was for a commercial purpose was a question of fact best left to the jury; (2) although the second factor weighs in favor of fair use because the copyrighted work is a "quintessential example of photojournalism," is factual and has been published, "this factor is rarely determinative"; (3) the third factor favors neither party; and (4) the fourth factor, often the most important factor, weighs against fair use because the defendants' use of the Combined Image "poses a very real danger that other such media organizations will forgo paying licensing fees" for the copyrighted work. Therefore, summary judgment was denied.
Shortly after the District Court's decision, the defendants filed a motion for reconsideration and a motion for leave to file an interlocutory appeal with the Second Circuit. The defendants focused their arguments on the transformative nature of social media. Before any further substantive rulings were entered, the parties settled. It is unfortunate that the appellate court will not have an opportunity to weigh in on this issue. Though, the ever-present nature of social media and the role it plays in copyright law will surely provide opportunities for other courts to consider the effect social media may have on the fair use analysis. #NotOverYet