Fair Use and News Reporting – A Fair Use Week Post

Fair Use and News Reporting

Guest post by Leigh Barnwell (J.D. Candidate, Class of 2015, Harvard Law School)

News reporting is supposed to be one of the paradigmatic uses protected as fair under US copyright law. It’s listed right in the preamble to the statute that the “fair use of a copyrighted work . . . for purposes such as . . . news reporting . . . is not an infringement of copyright.” 17 U.S.C. §107 (emphasis added). But in recent years it has become increasingly common for news organizations to be expected to pay licensing fees in order to use copyrighted images – including photographs depicting major newsworthy events – as part of their reporting. And this common practice now seems to be affecting the legal analysis of the scope of the fair use right enjoyed by the press.

These issues are at the heart of a dispute between Fox News Network and the New Jersey Media Group (publisher of several New Jersey newspapers) currently being argued in the Southern District of New York. The case is North Jersey Media Group Inc. v. Jeanine Pirro and Fox News Network, LLC.  The litigation arose out of a social media post made in 2013 to honor the anniversary of 9/11. On September 11, the Fox News show, Justice with Judge Jeanine, posted a composite image to its Facebook page that combined two iconic photographs side-by-side—one showing a group of firefighters hoisting an American flag at amidst the wreckage of the World Trade Center on, and the other showing four American marines in a strikingly similar pose raising the flag on Iwo Jima. The combined image already existed online, but the Fox News staff added the hashtag #neverforget to the image before posting it. In response, the New Jersey Media Group, copyright holders of the 9/11 photograph, brought suit for infringement. Earlier this month, the District Court denied Fox News’ motion for summary judgment, determining that they could not rule as a matter of law that the posting qualified as fair use.

A couple of things are particularly striking about the court’s opinion. Perhaps the most significant is that it jumps immediately to analyzing the four statutory factors for assessing whether a particular use qualifies as fair, and skips over the preamble language at the beginning of §107, outlining the paradigmatic purposes that fall within the fair use exception – the language that identifies news reporting as exactly the kind of use that would typically qualify. By leaving this language out of its analysis, the court ignores the special solicitude that Congress has shown to news reporting (along with teaching, scholarship, research, and other similar uses) by identifying it in the statute as the sort of use that should typically be protected under the doctrine.

This omission also informs the way the court conducts its fair use analysis under the four factors outlined in the statute. If we know that news reporting is characteristically the kind of use that should not be found infringing, that knowledge should shape the way we consider it under the four factors – and if our analysis under the four factors indicates that news reporting wouldn’t qualify as a fair use, then that may be a signal that we are interpreting the factors incorrectly or too rigidly, or applying them inappropriately in the particular context of reporting.

Here, because the court never considered whether Fox’s post qualified as news reporting, its analysis under the first factor—the purpose and character of the defendant’s use—wasn’t guided by the particular concerns that animate uses for news reporting. Instead the court focused on precedents—Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) and Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006)—that analyze fair use in the context of visual art. In those earlier cases, the Second Circuit had found that most of the artworks that appropriated copyrighted photographs were protected by fair use because the final works created were “fundamentally different and new,” Cariou, 714 F.3d at 706, or the artist had altered the original photographs to the point that they were “barely recognizable,” id. at 710.

This emphasis upon transformation makes sense when a court is assessing the purpose and character of a defendant’s use in the context of appropriation art. But as Kevin Smith pointed out in a fantastic post during the first Fair Use Week last year, transformation doesn’t make sense in the context of news reporting and many other public purposes that we nonetheless consider to be fair. Indeed, news reporting would be completely undermined if members of the press were required to transform or alter the newsworthy materials they were trying to disseminate to the public to the extent required in Cariou and Prince; since the purpose of news reporting is sharing accurate information, it doesn’t make sense to require transformation in order to consider the use fair.

The impact of licensing culture is most directly visible in the court’s analysis of the fourth fair use factor – the impact on the potential market for the original work. While acknowledging that the loss of a single licensing fee was not enough to tip the factor against fair use (because then it would always do so), the court found that Fox’s use would likely encourage other news media outlets not to seek licensing fees, thereby damaging the “primary market for the photograph.” Leaving aside that the firefighter photo does have a market beyond news media (which a quick Google search will confirm), the loss of licensing fees from parties whose use is at the core of the statutory fair use protection should not be relevant to the market assessment under the fourth factor. The fact that the court identifies the lost revenues from other news outlets as a significant financial harm that weighs against a finding of fair use in this case shows just how deeply the culture of licensing fees has pervaded the legal analysis of media fair use claim. These fees are something the court thinks a copyright holder has a right to collect, which would only be true if these uses aren’t protected as fair—which we know they are supposed to be!

Because the court focused so heavily on the four fair use factors and failed to address the special importance of news reporting head on, it missed what is arguably a more interesting and important question in the case, namely whether this Facebook post by a major media outlet – likely indistinguishable from hundreds of other tributes posted the same day – constitutes news reporting, and where the boundary of news reporting lies in the age of social media. It may be that Fox’s post shouldn’t be considered news reporting and therefore shouldn’t be entitled to the fair use protections that historically accompany that function. But by failing to address that question directly and by failing to account for the different purposes of news reporting in its analysis of the four statutory factors, this opinion advances the erosion of fair use protections for the press in a way that all media outlets should be concerned about. Different uses are protected as fair for different reasons – and it’s crucial that courts acknowledge and understand that fact as they apply the law.

Leigh Barnwell is a 3L at Harvard Law School, where she serves as a member of the Board of Student Advisers, an Executive Submissions Editor for the Journal of Law and Gender, and Copyright Fellow for the Office for Scholarly Communication. Before coming to law school, she studied English and Economics at Stanford University, received a Masters with Distinction in English from the University of Edinburgh in Scotland, and worked for several years in the Books Editorial Department of Duke University Press. She spent her 1L summer at Public Knowledge, a DC-based non-profit that works on IP, tech, and communications policy, and her 2L summer at Patterson Belknap Webb & Tyler in New York City.