North Jersey Media Grp. Inc. v. Pirro, No. 13 Civ. 7153 (ER), 2015 BL 33458 (S.D.N.Y. Feb. 10, 2015)
Fair use should be nonpartisan; copyright restrictionists are generally liberal, but Fox deserves fair use too, even if it does dumb stuff. (Also Democrats are routinely terrible on copyright issues.) Here, the district court denies summary judgment on a fair use defense, saying some understandable things and one very disturbing thing, along the way confirming some commentators’ suspicions about Cariou’s failure to explain what it meant about transformative purpose versus transformative content.
NJMG sued Fox (and individual defendant Jeanine Pirro) for infringing its copyright in an iconic photo of 9/11. On the Facebook page for Fox’s show Justice with Judge Jeanine, Fox posted an image juxtaposing the photo, featuring firefighters raising the American flag, with the classic photo of Marines raising the flag at Iwo Jima—a basic meme, in other words, something like this:
The photographer took the photo in the immediacy of the moment, not thinking much about it at the time given the events of the day. The photo received numerous awards. NJMG has made more than $1 million licensing the photo, mostly in 2002-2004. Its gross revenue for editorial licensing was about $10,000 and for commercial licensing was about $4,700 from January 1, 2013 through June 3, 2014, though it has also granted a number of free licenses. It didn’t file suit until 2012, though it occasionally sent a C&D; it might well have granted Fox a license for this post.
Though the PA in charge of the program and the associated Facebook page sought legal advice on fair use a few times a month for the program, she’d never consulted the legal department for the Facebook page. She “Googled” 9/11 to find an appropriate commemorative image in 2013, and immediately recognized the juxtaposition. She chose to use the combined image because of the parallel between the first responders and the Marines. The combined image uses a lower-resolution, cropped version of plaintiff’s photo. She added the hashtag #neverforget, and testified that she did so in order to convey Fox News’ participation in the global conversation taking place on social media that day. IHundreds of people commented on the image post.
The show didn’t discuss 9/11 on the editions immediately before and after the post, nor did the posting contain any information about the contents of the upcoming edition of the program, though NJMG claimed that a banner appearing across the top of the Facebook page provided that information. Fox deleted the post after a takedown request.
Fox argued that its use was transformative commentary on the parallels between 9/11 and Iwo Jima, with its #neverforget hashtag expressing solemn remembrance and respect for heroism. Although the work was somewhat altered in content, the court couldn’t find it sufficiently transformative as a matter of law. The court found the alterations were “‘barely discernable; unless the viewer is specifically prompted to look for them,” with the photo the clearly predominant feature of the combined image. Cariou suggested that more was required to transform an image, given the remand of five of the thirty images litigated in that case because they weren’t sufficiently transformed as a matter of law. “Graduation,” for example, featured a black-and-white photo enlarged and tinted blue, with a diamond-like shape painted over the subject’s eyes and mouth, and enlarged hands and an electric guitar pasted onto the canvas. By contrast, the work here was barely altered and immediately recognizable. The alteration here was “much less” than it was with the five remanded works in Cariou. It was also a “much closer call” than Blanch v. Koons. The combined image “surely altered the content and message of the Work, but only minimally,” not enough to be transformative as a matter of law or give an “entirely different aesthetic.” Fox’s purpose, then, was an issue of fact, not indisputably different as the publisher’s was in Bill Graham Archives.
This was a point made after Cariou by a number of commentators—the court, despite speaking of purpose, seemed to require transformation of content, contrary to the aims of much appropriation art. But here’s where the district court adds a really troubling wrinkle: “there is also an issue as to whether the commentary Fox News wished to convey created anything new at all, much less anything transformative,” since it just reposted a meme (“a secondary use of a secondary use”): “some other person first thought to combine the two photographs, and the phrase ‘#neverforget’ was a ubiquitous presence on social media that day.” All Fox did was say “Me too!” And that’s not the creation of “new information, new aesthetics, new insights and understandings.”
Importantly, the court notes that the parties didn’t discuss this issue. If they had, I hope the court would have recognized several things: (1) By this reasoning, Prince’s catalog would be infringing even if his canvases weren’t, because they merely republished his canvases—saying “me too!” The anti-abortion sites that reposted the anti-abortion video using excerpts from an abortion clinic in Northland Family Planning Clinic, Inc. v. Ctr. for Bio-Ethical Reform, 868 F. Supp. 2d 962 (C.D. Cal. 2012), wouldn’t have been saying anything other than “me too.” This can’t be the standard. If something has been transformed enough to create a new meaning or message such that the initial speaker is making a fair use, then the transformativeness factor must weigh in exactly the same way for a publisher or republisher; the difference in entity status can be taken into account in the other elements, such as commerciality.
(2) First Amendment doctrine in particular is super-clear about this: a publisher’s editorial judgment about which speech to select is entitled to the highest level of protection. See, e.g., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 570 (1995) (“[T]he presentation of an edited compilation of speech generated by other persons is a staple of most newspapers’ opinion pages, which, of course, fall squarely within the core of First Amendment security ….” (citation omitted)); Turner I, 512 U.S. at 675 (O’Connor, J., concurring in part and dissenting in part) (“Selecting which speech to retransmit is, as we know from the example of publishing houses, movie theaters, bookstores, and Reader’s Digest, no less communication than is creating the speech in the first place.”); Miami Herald Publ’g. Co. v. Tornillo, 418 U.S. 241, 258 (1974). (Entity status may affect things like how reckless indifference plays out in the fault aspect of defamation, given the initial speaker’s access to truth v. the publisher’s, and media defendants may sometimes get stepped-up protection, but the baseline protection itself is the same.) As a necessary implication, given the relationship between fair use and the First Amendment, the fact that speech was selected and not created in-house cannot affect the transformativeness element.
Transformativeness can only be properly measured by difference from the accusing work, not difference from all other speech out in the world. That’s how the courts have always evaluated transformativeness until now, and nothing else makes sense. (Suppose this standard were applied to an initially transformative .gif on tumblr. I reblog the .gif. If the post embeds the image, and thus doesn’t involve a new server copy of the image, is it more transformative than if there is a new server copy? Or is my reblogging itself a nontransformative “me too” whether or not there’s a new server copy?) Fox didn’t transform the (arguable) transformation, true. But it didn’t need to do so to meet the relevant standard.
Moving on: Commercial use’s relevance depends on how transformative a use is; the Facebook page was designed to promote the Fox program (not for nothing, itself a First Amendment-protected work, but ok) and thus there was at least a question of material fact about whether Fox’s purpose was purely expressive or commercial/promotional, especially since the purposes were not mutually exclusive—by commenting on 9/11 and honoring first responders, “Fox News was also consciously associating itself with a view indisputably regarded favorably by most if not all of its target audience. Such uncontroversial commentary arguably generates goodwill for, and therefore serves to promote, the Program.” This factor didn’t weigh in favor of either party as a matter of law. [Is there much speech not designed to make the speaker look good to its target audience?]
The nature of the work was factual and created in the moment of recording history rather than staged; in addition, it had been published for a long time, and therefore factor two weighed in favor of Fox as a matter of law. The third factor favored neither party, since if the purpose (commemorating 9/11) was acceptable, it wasn’t clear that Fox could have used any less.
The fourth factor was the most important (here citing cases that I don’t think survive Campbell, but arguably still correct if limited to nontransformative use). Fox claimed there was no evidence of harm to a licensing market, and that NJMG allowed extensive unlicensed uses, showing that “stray internet uses” don’t substitute for or harm the market for the photo. However, the court found that this factor weighed against fair use. Without substantial transformativeness, the combined image evoked the historical meaning that allowed the photo to remain popular to this day. NJMG had an active licensing program, including licensing for editorial use—as allegedly intended here. “Fox News’ interest in the Combined Image therefore poses a very real danger that other such media organizations will forego paying licensing fees for the Work and instead opt to use the Combined Image at no cost.” Thus, the danger was far more than a one-time lost fee. “[T]he continued demand for the Work for editorial use suggests that the purported use for commentary here was likewise paradigmatic of a primary market for the photograph.” Even if NJMG hasn’t tried to get paid for many uses, it has the right to this market.
Summary judgment denied.