Vondran Legal® Photo Infringement Insights: Lessons from North Jersey Media Group v. Pirro, Fox News Network LLC, and Fox Business Network LLC
By Attorney Steve® | Vondran Legal® – Nationwide Copyright & Media Law Representation
In one of the most closely watched copyright disputes involving social media and news organizations, Fox News ultimately agreed to settle a federal copyright lawsuit over its use of the iconic "Raising the Flag at Ground Zero" photograph just before trial. While the settlement prevented the court from issuing a final ruling, the litigation remains one of the most significant modern cases involving fair use, transformative works, social media publishing, and the unauthorized use of copyrighted photographs.
For photographers, media companies, content creators, and businesses that post images online, the case offers valuable guidance on the risks of assuming that an image becomes "free to use" simply because it depicts a historic event.
The Photograph at Issue
The lawsuit centered on one of the most recognizable photographs of the September 11, 2001 terrorist attacks.
Photographer Thomas E. Franklin, working for The Record newspaper, captured three firefighters raising an American flag amid the rubble of the World Trade Center shortly after the attacks. The image quickly became one of the defining photographs of the tragedy.
North Jersey Media Group ("NJMG"), owner of The Record, owned the copyright in the photograph.
Over the years, the image became an American icon and was licensed extensively for publications, documentaries, books, educational materials, and memorial projects.
Its popularity, however, also led to widespread unauthorized copying.
What Did Fox News Do?
In 2013, Fox News personalities Jeanine Pirro and Bret Baier posted commemorative images to their official Facebook pages recognizing the anniversary of September 11.
Rather than simply reposting Franklin's photograph, Fox created a composite image.
The graphic:
- placed Franklin's Ground Zero photograph beside the famous World War II Iwo Jima flag raising photograph by Joe Rosenthal,
- altered the layout,
- cropped portions of each photograph,
- added patriotic wording,
- included a "Never Forget" message,
- added Fox branding and social media formatting.
Fox did not obtain permission from North Jersey Media Group before using Franklin's copyrighted photograph.
NJMG filed suit in the Southern District of New York alleging copyright infringement.
Fox's Fair Use Defense
Fox argued that its use was protected under the Copyright Act's fair use doctrine, 17 U.S.C. § 107.
Fox maintained that its use was:
- transformative,
- commemorative,
- educational,
- related to news reporting,
- part of public discussion surrounding September 11.
Fox argued that by combining the two photographs, it created an entirely different expressive message:
The original photograph documented a historical event.
Fox argued the new image instead commented upon:
- American resilience,
- patriotism,
- historical continuity,
- sacrifice across generations.
According to Fox, viewers were not simply seeing Franklin's photograph again.
Instead, they were seeing an entirely new message created by juxtaposing two iconic moments in American history.
The Legal Issues
The litigation presented several fascinating copyright questions.
1. Was the use transformative?
The central issue was whether Fox merely republished the photograph or created something sufficiently new.
The Supreme Court has repeatedly emphasized that transformation often drives modern fair use analysis.
The question became:
Did Fox merely decorate its Facebook page with someone else's copyrighted work?
Or
Did Fox use the photograph to express an entirely different idea?
This issue would likely have dominated the trial.
2. Commercial versus noncommercial use
Although Fox argued the Facebook post was commemorative, NJMG argued:
- Fox News is a commercial enterprise.
- Social media posts promote the Fox brand.
- Increased engagement creates advertising value.
- The post benefited Fox commercially.
Commercial motivation generally weighs against fair use, although it is rarely dispositive.
3. Amount copied
Fox copied virtually the heart of Franklin's photograph.
Even though portions were cropped, the image remained immediately recognizable.
Copying the "heart" of a work often weighs against fair use.
4. Effect on the licensing market
Perhaps the strongest issue for NJMG involved licensing.
Franklin's photograph had substantial licensing value.
NJMG argued that if media organizations could freely use the photograph whenever discussing September 11, the licensing market for the image would collapse.
Market substitution remains one of the most important fair use factors.
The District Court's Earlier Fair Use Decision
Before the settlement, the district court had already considered Fox's motion for summary judgment.
Importantly, the court refused to dismiss the case on fair use grounds.
Although the court acknowledged that Fox had added new expressive elements, it questioned whether those additions sufficiently transformed Franklin's copyrighted expression.
The court noted that:
- Fox copied essentially the entire photograph;
- the photograph remained the dominant visual element;
- viewers still recognized Franklin's work immediately;
- factual disputes existed concerning market harm.
Because reasonable jurors could disagree, summary judgment was denied.
That ruling alone made the case especially significant.
Settlement Before Trial
Just hours before jury selection was scheduled to begin in February 2016, the parties reached a confidential settlement.
No damages were publicly disclosed.
The settlement also resolved counterclaims between the parties.
As a result:
- no jury verdict was issued;
- no appellate opinion followed;
- no binding precedent emerged concerning the Facebook use.
Many copyright lawyers viewed the settlement as unfortunate because the case had the potential to become one of the leading fair use decisions involving social media.
Why This Case Still Matters
Although no final opinion was issued, the litigation remains highly influential.
Lawyers continue discussing it because it illustrates how uncertain fair use litigation can become.
Both sides possessed credible arguments.
Fox believed it had created a new expressive work.
NJMG believed Fox simply copied one of its most valuable licensed images.
Either side could have prevailed before a jury.
That uncertainty likely encouraged settlement.
Practical Lessons for Businesses
1. Historical photographs remain copyrighted.
Many businesses assume that famous photographs become "public domain."
That is incorrect.
Historical significance does not eliminate copyright protection.
2. Giving credit is not enough.
Many companies believe attribution avoids infringement.
It does not.
Only a license or a valid legal defense protects unauthorized use.
3. Social media is publication.
Posting on Facebook, Instagram, LinkedIn, X, or TikTok is still copyright publication.
The same Copyright Act applies online.
4. Adding text does not automatically create fair use.
Many people think adding:
- captions,
- logos,
- quotations,
- graphics,
- filters,
- borders,
creates a transformative work.
Usually it does not.
Courts look at whether the new work actually serves a fundamentally different purpose.
5. Fair use remains unpredictable.
Fair use is one of the most fact-intensive doctrines in intellectual property law.
Small factual differences can completely change the outcome.
That is why many sophisticated companies obtain licenses rather than gamble on litigation.
Comparison to Modern Fair Use Cases
Since the Fox News litigation, courts have continued refining transformative use.
Notably:
- Andy Warhol Foundation v. Goldsmith, 598 U.S. 508 (2023), narrowed expansive views of transformation by emphasizing that courts must focus on the purpose and character of the secondary use, not merely whether it conveys a different artistic message.
- Other cases involving online images have similarly reinforced that simply repurposing a photograph for a new audience or adding modest design elements does not automatically make the use transformative.
Viewed through the lens of Warhol, Fox's fair use argument might face even greater scrutiny today because both the original photograph and Fox's use involved publishing the image to communicate about a newsworthy historical event.
Key Takeaways
The Fox News Ground Zero litigation demonstrates that even sophisticated media companies face significant copyright exposure when using copyrighted photographs without permission. Although Fox advanced a serious fair use defense based on transformation, the district court concluded that the issue was too fact-intensive to resolve on summary judgment, and the parties ultimately settled before trial.
For photographers, the case underscores the continued strength of copyright protection for iconic images and the importance of preserving licensing markets. For publishers and businesses, it serves as a reminder that historical significance, social media use, and patriotic messaging do not automatically excuse unauthorized copying. Before using a copyrighted photograph—particularly one with recognized commercial licensing value—it is often far less expensive to secure permission than to defend a federal copyright lawsuit.
Need Help With a Copyright Infringement or Fair Use Dispute?
Vondran Legal® represents photographers, publishers, content creators, businesses, and media companies in copyright disputes nationwide, including:
- Copyright infringement defense
- Fair use opinions and litigation
- Unauthorized use of photographs
- Social media copyright disputes
- DMCA takedown and counter-notice matters
- Copyright licensing negotiations
- Federal copyright litigation
If your business has received a copyright demand letter or you have questions about whether a proposed use qualifies as fair use, experienced legal guidance can help you evaluate your risks before litigation begins.
