Fox News
After being sued over a Facebook post, Fox News is arguing that social media is an inherently “transformative” medium, and therefore protected by the fair use doctrine of copyright law. Pictured: the News Corp. building in New York. Reuters

Social media users tend to fall into two philosophical camps: People who see shareable content as free for the sharing, and those who exercise caution or ask permission before reposting copyrighted works. Members of the free-for-the-sharing crowd may not know it yet, but they have an unlikely ally championing their cause in the courts: Fox News Channel.

In recent court papers, lawyers for the cable news network argued that posting someone else’s photo on a social media site without that person’s permission should not necessarily constitute copyright theft. Why? Because social media -- in particular Facebook -- is by its very definition “social.” When you post something on Facebook, you invite other users to comment and critique it. And according to Fox News, that alone could satisfy the criteria for a fair use defense.

It sounds like a stretch, but copyright experts say such reasoning could have significant implications if Fox is successful at convincing a federal court that social networking is an inherently transformative medium. “It would be huge,” said Scott Hervey, a lawyer for Weintraub Tobin in Beverly Hills who specializes in entertainment and intellectual property law. “It would pretty much change the landscape of copyright enforcement online.”

So why would a cable network whose median viewer is over 65 wade into a battle over free expression on social media? As you might have guessed, it’s not out of altruism. Rather, it’s because Fox News was sued in 2013 for posting someone else’s photo on Facebook. And not just any photo. The lawsuit in question concerns Thomas Franklin’s famous photograph of New York City firefighters raising the American flag over the rubble of the World Trade Center on Sept. 11, 2001.

According to the lawsuit, Franklin’s image was posted to the Facebook page of Fox News personality Jeanie Pirro on the 12th anniversary of the attacks. The Facebook post included the hashtag #NeverForget and it was juxtaposed with Joe Rosenthal’s Pulitzer Prize-winning historic photograph from World War II, “Raising the Flag on Iwo Jima.”

The owner of Franklin’s photo, North Jersey Media Group, filed a lawsuit against Pirro in October 2013, and Fox News Network LLC was later added to the suit. Lawyers for Fox News argued that posting the photo fell under “fair use,” a doctrine in copyright law that allows copyrighted works to be used without permission in limited circumstances. There is no definitive line between what falls under fair use and what doesn’t, but the courts generally consider four factors: the character of the use, the nature of the copyrighted work, how much of the work was used, and what effect the use might have on the potential marketplace. The first factor is also sometimes known as the “transformative test.”

In a memo to the court earlier this month, lawyers for Fox News laid out a comprehensive argument for why they believe not only that posting the Ground Zero photo juxtaposed with the Iwo Jima photo qualifies as transformative, but that social media as a whole is a transformative medium:

“Expression on social media, and on Facebook in particular, is thus inherently intertwined with ‘comment’ and ‘criticism,’ purposes that the Copyright Act sets forth as presumptively fair ... Every post is an invitation for others to comment and criticize; every message and image invites reciprocal expression. A context-sensitive test for transformativeness, then, will necessarily account for the fact 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.”

A Fox representative declined to comment on the case.

Hervey acknowledged that “criticism and commentary are the hallmarks of fair use,” but he said Fox News’ argument stretches the definition of transformative “a bit too far.” His opinion was echoed by Mickey Osterreicher, general counsel for the National Press Photographers Association, who called it no small irony that a content company like Fox News, which depends on strong copyright laws for its livelihood, would go to such imaginative lengths to circumvent them.

“I wonder how Fox would feel about that argument being used against all of its intellectual property,” Osterreicher told International Business Times.

Anything Goes Generation

Osterreicher said the Fox News case is indicative of what he sees as a growing threat to working photographers and the copyright protections they rely on. Whereas the fair use defense was once considered an exception to copyright law, he said the doctrine is now being used as a catchall excuse for media companies and Internet users who get caught using copyrighted material without permission. “We just see people just thinking that they can take and use anything they want and then claim fair use later,” he said.

Osterreicher added that media outlets in particular should be more active in educating their newsroom staffs about copyright law, which he concedes is a challenge as a generation weaned on Facebook and Twitter enters the workforce. “Unfortunately, we’ve seen it from lots of organizations, including news organizations,” he said. “People who have absolutely no concept of copyright, of fair use, of anything -- they’ve grown up in a culture where they believe that the Internet is public domain and anything that they find there is there for the taking.”

Fox News is not the only media outlet seeking to push the bounds of fair use. Jonah Peretti, founder of BuzzFeed Inc., has argued that his site’s ubiquitous listicles -- which sometimes include unlicensed images -- are inherently transformative, although that didn’t stop a photographer from suing the company for $3.6 million in 2013. In a high-profile copyright case that same year, the French news agency AFP argued, unsuccessfully, that a photograph of the 2010 Haiti earthquake was fair game because the photographer, Daniel Morel, made it publicly available on Twitter.

Both cases highlight the difficulty of balancing the needs of copyright owners against a backdrop of shareable media, rapidly evolving technologies and a never-ending news cycle that prizes speed above all else.

In February, a judge denied Fox News’ motion for summary judgment on its fair use defense, but in doing so, the court by its own admission did not examine what makes posting on social media inherently different from other kinds of speech. Fox News lawyers say the millions of Americans who use social media every day deserve a more definitive ruling. “If social media’s new and different aspects are not relevant to a fair use analysis, then users who share copyrighted content are far more likely to be infringing the copyrights of others,” the lawyers wrote this month. “Such a regime would effectively proscribe a wide swath of ongoing online speech.”

Christopher Zara is a senior writer who covers media and culture. News tips? Email me here. Follow me on Twitter @christopherzara.

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