Judge Rules Fox News’ Use of Flag Photo Was Not Fair Use

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Mar 29, 2015

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American FlagA federal judge has ruled that the publication of a famous photo taken in the wake of September 11 on a Facebook page associated with Fox News was not protected by the “fair use” doctrine under US copyright law.

The photo shows three New York firefighters raising an American flag over the ruins of the World Trade Center. The picture is entitled “Raising the Flag at Ground Zero” and the copyright in the image is owned by New Jersey Media Group Inc., the parent company of The Record newspaper in New Jersey.

The picture was taken by a photographer for the newspaper and appeared on the front page of many newspapers on September 12, 2001.

The Record earns a significant amount of revenue from licensing the image. It has also engaged in copyright infringement litigation to enforce its rights, filing at least 10 other cases in the past three years.

“Justice with Judge Jeanine”

Fox News personality Judge Jeanine Pirro, the host of “Justice with Judge Jeanine,” used the photo on her Facebook page to commemorate the anniversary of the 9/11 terrorist attack in 2013, without paying a licensing fee.

Fox contended that its use of the photo was “fair use” under US copyright law.

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Fair Use

“Fair use” provides an exception to the exclusive right of a copyright holder to do certain things, such as publishing and making copies of copyrighted works.

Examples of fair use include:

  • parody
  • news reporting
  • commentary and criticism
  • teaching
  • research

Fox claimed that The Record could not “claim ownership in the firefighters’ actions.”

The Record also sued Sarah Palin for copyright infringement after she use the photo on her own Facebook page. She made a similar fair use argument and is reportedly engaged in settlement discussions.

Using Photos

Many people are under the mistaken impression that any image found on the Internet is free to use in any way – for example, in a blog or on a business website. This is not the case. Copyright owners can, and frequently do, sue the unauthorized users of their photos.

There are a couple of methods that people can use to reduce the risk of getting sued for using images found online:

It’s important to note that many images that are free to use under the Creative Commons license must be properly attributed to the owner or author.

For example, this picture of the US flag needs to be credited as follows:

“US Flag Backlit” by Jnn13 – Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons – https://commons.wikimedia.org/wiki/File:US_Flag_Backlit.jpg#mediaviewer/File:US_Flag_Backlit.jpg

To get the proper text for attribution, open a Creative Commons-licensed image using the media viewer, then click on the download button in the lower right-hand corner of the picture margin. The message “you need to attribute the author” will appear, and clicking on that will give you the text to copy and paste onto the site where you’re using the photo.

If you have questions about the use of photos…

If you have questions about the use of photos you didn’t take, or if you’ve gotten a cease and desist order for using a photo, you may wish to consult a copyright attorney.

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