Scott-Hervey-10-webNorth Jersey Media Group Inc. is the copyright owner of the iconic photograph of three firefighters raising an American flag at the ruins of the World Trade Center on September 11, 2001. On September 11, 2013, a Fox News producer posted a photograph that juxtaposed the 9/11 photograph with a World War II photograph of four U.S. Marines raising an American flag on Iwo Jima on the Facebook page for the Fox News’ television program Justice with Judge Jeanine. North Jersey Media Group sued Fox, claiming that the posting of the combined image infringed its copyright. Fox news argued that the use was protected “fair use” and moved for summary judgment. The court denied Fox’s motion and Fox is now appealing to the 2nd Circuit.

Fox’s appeal centers around the lower court’s analysis of the first fair use factor: the purpose and character of the use. The purpose of this factor is to test whether the allegedly infringing work is “transformative.” A work is transformative when it adds something new to the work allegedly infringed, with a further purpose or different character, altering the original work with new expression, meaning, or message. A work is transformative if it does something more than repackage or republish the original copyrighted work. A transformative work is one that serves a new and different function from the original work and is not a substitute for it. As the Supreme Court noted in Campbell v. Acuff-Rose Music, Inc, “the more transformative the new work, the less will be the significance of other factors, … that may weigh against a finding of fair use.”

Although acknowledging that Fox News did alter the image and message of the original work, the lower court noted that it did so “only minimally”. The lower court stated that it could not conclude as a matter of law that the physical alterations made to the original photograph transformed the new work sufficiently to merit protection as fair use.

Fox believes the lower court’s focus on physical alteration to the original image was incorrect and that the court should have considered the other aspects of Fox’s use. Namely, Fox contends that in analyzing the transformative nature of its use, the lower court should have considered the use of the photo as having been used “in an inherently transformative context: on social media.” Fox argues that “[e]xpression on social media, and on Facebook in particular, is inherently intertwined with “comment” and “criticism,” purposes that the Copyright Act sets forth as presumptively fair” since “[e]very post is an invitation for others to comment and criticize…”

Fox argues that the lower court failed to recognize the applicability Bill Graham Archives v. Dorling Kindersley Ltd. In that case the 2nd Circuit held that a publisher’s use of an old concert poster in a “coffee table” book documenting the history of the Grateful Dead was fair use. In finding the use to be “transformative,” the court focused on the context of the publishers use – use for a biographical purpose – as opposed to the concert promoter’s use, Fox contends that the lower court relied on case law such as Cariou v. Prince and Blanch v. Koons which based transformativeness on physical alterations of the original work. The apparent conflict between the Bill Graham and the Cariou modes of analysis, Fox argues, make appellate review appropriate.

Fox argues that a context-sensitive test for transformativeness must consider that “Facebook and other social media sites are by design used for purposes of “comment” and “criticism,” and such a test will inevitably favor uses on social media.” It seems that Fox is arguing that publication of a work on social media is transformative in and of itself. Does this argument go too far; this author thinks that it does. However, there is merit to Fox’s argument that the lower court focused solely on the physical alterations to the image and failed to consider whether the context of Fox’s use was transformative. ScottImg