Tag: Fair Use

SDNY: Use of Photojournalists’ 9/11 Footage May Be Fair Use

A firefighter digging through rubble. An ambulance being lifted out of the wreckage. Photographs of these and other somber scenes from downtown Manhattan on September 11, 2001 formed the basis of photojournalist Anthony Fioranelli’s copyright infringement case against several media organizations that allegedly used these photos without permission. Recently, the S.D.N.Y. issued a mixed ruling on whether use of these harrowing-yet-iconic photos was fair.

Background

Plaintiff Fioranelli was one of four reporters allowed access to Ground Zero immediately after the September 11, 2001 terrorist attack on the World Trade Center (“9/11”). Fioranelli compiled his raw footage of Ground Zero and registered it with the Copyright Office (the “Content”). CBS licensed Fioranelli’s Content and agreed to pay Fioranelli for each use of any portion of the Content, but later created multiple newsreels and licensed them to other media organizations without Fioranelli’s permission and without compensating Fioranelli for those further uses. Fioranelli sued CBS and its purported sublicensees, including BBC, A&E Television Networks, and Paramount Pictures (among others), alleging that sixteen works—including the CBS newsreels, ten documentaries/docuseries, a docudrama, a “making of” featurette, a religious TV program, and two programs exploring/debunking conspiracy theories—infringed his copyright in the Content. The parties moved for summary judgment, with the defendants seeking a judgment from the court that their use was de minimis and fair.

De Minimis Use

While there was no dispute that the defendants actually copied Fioranelli’s Content, the parties disputed whether the amount copied was legally actionable. The defendants relied on a quantitative analysis, arguing that because they used only a small portion of Fioranelli’s total footage, their use was de minimis.

The court disagreed, holding that a defendant’s quantitatively brief display of a copyrighted work, “when conspicuously displayed, can be actionable.” Applying this standard, the court found that defendants prominently displayed the Content in fourteen of the sixteen challenged works, which contained a full-screen depiction of Fioranelli’s Content. The court noted that the Content was “not mere background footage” but was “clearly observable” and “the focus of the film when shown.” The court further found that the remaining two works—a docudrama and its “making of” featurette—used the Content as the focal point of an entire scene and were also not de minimis. Accordingly, the court denied defendants’ motion for summary judgment on de minimis use, finding that the qualitative prominence of defendants’ uses (i.e., to occupy an entire screen or as the focal point for the viewer) outweighed the quantitative brevity of such uses.

Fair Use

Regarding defendants’ motion for summary judgment on fair use, the court analyzed the four familiar fair-use factors.

Regarding the second factor (the nature of the copyrighted work), the court found that photojournalism (like Fioranelli’s Content) consists primarily of non-fictional renderings of historical events, and often precludes substantial demonstrations of creativity. As such, the nature of the Content—which was non-fictional and historical—weighed in favor of the defendants.

As for the fourth factor (the effect on the potential market for the copyrighted work), the court found that defendants’ uses were paradigmatic of the market for the Content, i.e., licensing to media organizations and “a clear substitute” for Fioranelli’s Content. The court also found that allowing CBS to sublicense the Content to other media organizations without compensating Fioranelli for those sublicensed uses would gravely impact freelance photojournalists, who seek out footage expecting to collect licensing fees for their work. Accordingly, the court found that the fourth factor weighed against the defendants.

As for the first and third factors, the court separately analyzed the alleged infringements. Regarding the first factor (the purpose and character of the use), the court found that some alleged infringements were transformative, whereas others were not, and further found that, for some alleged infringements, fair use issue could not be decided at summary judgment. While the court agreed with Fioranelli that each of the defendants’ uses were commercial in nature, which tends to weigh against fair use, it found that this was not dispositive of the various fair use determinations.

The court found that seven of the challenged works were not transformative because none incorporated Fioranelli’s Content to comment on or critique it, and because those works shared the original purpose of Fioranelli’s Content—to inform the viewer of what happened on 9/11 and its aftermath. In particular, the court held that “[t]he expressive purpose of the original use and the secondary use are the same,” and that defendants’ use of unaltered copies of Fioranelli’s Content to achieve the same purpose that Fioranelli sought to achieve, led the court to conclude that such uses were not transformative.

As for another seven of the challenged works (which included the religious TV program and programs exploring/debunking conspiracy theories), the court declined to make a fair use determination on summary judgment, based in part on defendants’ arguments that their use was transformative because it served a different purpose than Fioranelli’s purpose in creating the Content. For example, the court noted that the programs exploring/debunking conspiracy theories were intended “to educate viewers about conspiracy theories surrounding 9/11” which was not Fioranelli’s original purpose. Similarly, the court held that a reasonable juror could find that use of Fioranelli’s Content to build a political argument was a sufficiently different purpose so as to potentially render the use transformative. Accordingly, the court held that this was an issue to be determined at trial.

The court also found that a docudrama and its “making of” featurette were transformative. The docudrama was a fictionalized retelling of a story of two police officers trapped in the rubble at Ground Zero, wherein Fioranelli’s Content is superimposed on the television that a fictionalized police officer’s family is watching. The court found that the docudrama used Fioranelli’s Content creatively to construct a unique fictionalized setting, not to record or share history. As such, the docudrama’s use of Fioranelli’s Content was found transformative. As for the “making of” featurette, the court found that its purpose was to provide insight into the rationale behind the cinematic choices made in the film, rendering that transformative as well.

As for CBS’ alleged unauthorized use of the Content, the court held the first fair use factor favored Fioranelli for the additional reason that the infringement was in bad faith because CBS removed a watermark reading “NOT FOR BROADCAST” from Fioranelli’s footage before CBS used the footage in its newsreels. The court found that this decision, together with the fact that CBS’ use duplicated Fioranelli’s original purpose and was commercial in nature, led the first factor to weigh slightly in Fioranelli’s favor.

In analyzing the third factor (the amount and substantiality of use), the court referred back to its de minimis use analysis and declined to adopt the defendants’ mathematical, quantitative approach, instead considering whether “the extent of Defendants’ copying is consistent with or more than necessary to further the purpose and character of the use.” For seven works found not transformative, the court found this factor neutral, and for seven additional works the court left this determination for trial, as reasonable jurors could disagree regarding whether the defendants used more of the copyrighted material than necessary for each work’s purpose. For the two uses that the court found transformative (the docudrama film and featurette), the court found that the few seconds of copyrighted material shown on the in-scene television were “no more than necessary to ensure the viewer understood that the family was watching the events of 9/11 unfold on television.”

In sum, the court found that the seven non-transformative uses (the two newsreels and six historical, non-political documentaries) were not fair use; that the two uses that were transformative (the docudrama film and featurette) were fair use; and that for the seven remaining works, fair use could not be decided on summary judgment.

The case is Fioranelli v. CBS Broad. Inc., No. 15-CV-0952 (VSB), 2021 WL 3372695 (S.D.N.Y. July 28, 2021).

This article was written by Brooke M. Wilner and Samuel V. Eichner of Finnegan Law Firm.

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Employee Codes of Conduct: Really? Requiring Someone To Use Information “Fairly And Lawfully” Can Be Illegal?

Allen Matkins Law Firm

Companies have lots of very good reasons for adopting codes of conduct.  These reasons include:

  • Ensuring compliance with applicable exchange listing rules (e.g., NYSE Rule 303A.10 and NASDAQ Rule 5610);
  • Minimizing the risk of securities law violations (e.g., Regulation FD and Rule 10b-5);
  • Protecting company assets (trade secrets as well as reputational assets);
  • Complying with contractual obligations requiring confidentiality; and
  • Complying with customer and employee privacy laws and regulations.

Thus, I was amazed to see a recent decision by a panel of the National Labor Relations Board finding the following language in a code of conduct to be unlawful:

Keep customer and employee information secure.  Information must be used fairly, lawfully and only for the purpose for which it was obtained.

Fresh & Easy Neighborhood Market and United Food & Commercial Works Int’l Union, Cases 31-CA-077074 and 31-CA-080734 (July 31, 2014).   The NLRB found that this language violated employees’ rights under Section 7 of the National Labor Relations Act which guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”.  Reversing the administrative law judge, the panel found that employees would reasonably construe the above language “to prohibit discussion and disclosure of information about other employees, such as wages and terms and conditions of employment”.  Really?  This admonition was included at page 16 of a 20 page booklet primarily dedicated to a variety of ethical matters.  In my view, it is arbitrary and capricious, if not just plain bizarre, to interpret this language as conveying any limitation on employees’ Section 7 rights.

ARTICLE BY

Keith Paul Bishop
OF
Allen Matkins Leck Gamble Mallory & Natsis LLP

Copyright Lessons from the Campaign Trail: Romney, Gingrich and Fair Use

Recently found in The National Law Reviewwas an article by Geri L. Haight of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. regarding Copyrights and Fair Use:

This Republican primary season has provided lots of fodder for political blogs, but it has also provided a few gems relating to — what else — trademark issues.    Now, U.S. copyright law is in the spotlight of the Republican primary campaign.  First, Republican presidential hopeful Mitt Romney is considering whether to pull a television ad that is comprised wholly of a 30 second clip from a January 21, 1997 episode of NBC’s “Nightly News” program hosted by Tom Brokaw.  The Romney ad is entitled “History Lesson” and can be viewed here.  In the ad,  Brokaw announces the House Ethics Committee’s decision to penalize then-Speaker Newt Gingrich.  The ad contains no other voiceover or images.  It ends simply with a Romney disclaimer (“Paid For By ….) and the statement that Romney approves the ad.  NBC has sent the Romney campaign a cease and desist letter, alleging that the ad constitutes copyright infringement.  Tom Brokaw has expressed that he is “extremely uncomfortable” with the use of his personal image.   Romney’s campaign asserts that its use of the news clip  “falls within fair use” and, therefore, does not violate copyright laws.

Second, Romney’s primary opponent in the race for the Republican nomination, Newt Gingrich, has copyright troubles of his own.  On Monday, Gingrich was sued in Illinois by a former member of the band Survivor (under the name “Rude Music”) for his use of the song “Eye of the Tiger” at campaign events.  The complaint asserts that Gingrich is “sophisticated and knowledgeable” of federal copyright law, citing Gingrich’s tenure in the U.S. House of Representatives during which the Copyright Act underwent several revisions.  As evidence of Gingrich’s further familiarity with copyright laws, Rude Music cites Gingrich’s recent criticism of the Stop Online Piracy Act at the Republican primary debate in South Carolina.  During that debate, Gingrich is quoted in the complaint as saying: “We have a patent office, we have copyright law. If a company finds that it has genuinely been infringed upon, it has the right to sue.”  In the complaint, Rude Music seeks an injunction and unspecified monetary damages based on Gingrich’s unauthorized public performances of the song.

Romney’s and Gingrich’s recent copyright troubles involve the defense of fair use.  So, what is that?  This defense to a charge of copyright infringement is provided in Section 107 of the Copyright Act.  Section 107  contains a list of the various purposes for which the reproduction of a work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research.   This provision sets out four factors to be considered in determining whether or not a particular use is fair:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

In Romney’s situation, NBC’s position seems to be focused largely on the first factor — its assessment that use of the news clip is commercial in nature.  The clip is used in a political ad that seeks, among other things, donations to fund Romney’s campaign against Gingrich.  But Romney’s campaign has stressed that it used only 30 seconds of a much longer broadcast and that it is using the clip for the content of the facts conveyed (regarding Gingrich’s past ethics violations), not for the particular style of the delivery of those facts.  And Romney seems to be using the clip to comment on Gingrich’s representations during the campaign regarding these past ethics violations.  The risk for the Romney campaign, however, may be the problem with reliance on the fair use in general, identified by the U.S. Copyright Office itself:  “The distinction between fair use and infringement may be unclear and not easily defined.”  But maybe that’s the point.  The Romney ad is certainly getting lots of attention due to NBC’s assertion of a copyright infringement claim.

In Gingrich’s case,  there are arguments for and against application of the fair use factors for both sides.  Again, because the songs are played at campaign events, there is an arguable commercial component to the use.  But there are also arguments about the use being political speech and commentary (given the theme of Gingrich’s underdog status).  The case involves claims that arise frequently in the content of political campaigns (e.g., Jackson Browne sued John McCain in 2008 based on the candidate’s use of the song “Running on Empty” in an ad mocking then candidate Barack Obama’s energy policies).  Though common, most cases settle early so that we do not have a wealth of case law resolving this issue.

NBC and Rude Music have both expressed false endorsement and right of publicity concerns.  By using the NBC news clip, does the public believe that NBC and/or Brokaw endorse Romney?  Or does the band Survivor endorse Gingrich because Gingrich uses “Eye of the Tige” at his campaign events?  Clearly, this perception is a concern to Brokaw, who has stated that he does not “want [his] role as a journalist compromised for political gain by any campaign[.]“  In a world where journalists are perceived as favoring one political party or the other (e.g., Fox News or MSNBC) and musicians take sides in political fights (e.g., Springsteen endorsing Obama or Wayne Newton endorsing Bachmann), such a claim may have legs.

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.