Media Outlet Use of Photo Not a Slam Dunk Fair Use

North Jersey Media Group (NJMG) owes the copyright to the seminal photograph of three firefighters raising the American flag in the rubble of the World Trade Center site on September 11, 2001 (the Work).  On September 11, 2013, Fox News posted a combined image of the Work next to the famous World War II photo of four U.S. Marines raising the American flag of Iwo Jima on the Justice with Judge Jeanine television show Facebook page.  Fox did not seek permission from NJMG before posting the combined image.  NJMG sued Jeanine Pirro and Fox News Network, LLC (collectively “Fox”) for copyright infringement.  Fox argued that their use was a fair use and brought a motion for summary judgment.  The district court denied Fox’s motion for summary judgment.

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