The news has become the news.
January 11th, 2016, Fox News will battle it out in the courtroom against North Jersey Media Group, publisher of The Record and the Herald News, over copyright claims that state Fox News used iconic images from the 9/11 attacks on the World Trade Center without permission.
The image in question is a photograph captured by photojournalist Thomas Franklin that depicts three firefighter hoisting the American flag above the rubble of the World Trade Center, an image that has since become iconic and shared by news outlets across the world.
The issue, according to the documents, is that the image was shared without permission by Fox News on its Facebook pages as part of an anniversary rememberance post, which also featured the historic image of five U.S. Marines and a Navy sailor raising the American flag on Iwo Jima during WWII.
Earlier this year, Fox News attempted to rid themselves of hardship, arguing that the image was shared under fair use. In a statement made back in March, Fox News said ‘social media is transformative by design,’ effectively implying that anything shared on social media can be considered fair use.
New York Federal Judge Edgardo Ramos disagreed, stating that the work wasn’t transformative enough, despite Fox News’ argument that the image’s low-resolution and slight alterations alongside news commentary deemed it fair use.
Ahead of the upcoming trial, Fox News has released a statement laying out a number of defenses which they claim further prove it was legally shared under fair use.
Specifically, Fox News says that the now-iconic image was licensed from the Associated Press, but North Jersey Media Group refused to accept the $250 sub licensing payment, an act that would’ve prevented this trial in the first place.
Furthermore, Fox News claims that Franklin, not North Jersey Media Group, is the sole holder of licensing rights, as he was not an employee of North Jersey Media Group at the time the image was captured, a minor detail that could be a loophole in copyright law to determine who possesses the license.
It’s worth noting that Fox News isn’t the only organization North Jersey Media Group went after for illegal use of their image. BBC Worldwide, CBS Broadcasting and others were all involved in almost identical lawsuits, but the Fox News lawsuit is the only one to have made it past the preliminary hearing thus far.
It’ll be interesting to see how things play out in court on January 11th, 2016. The trial is anticipated to last between 3–4 days and should prove to be a massive sway in social media fair use cases depending which way the legal pendulum swings.