Fox News and North Jersey Media Group have announced they have settled their copyright dispute over the use of the iconic photo taken in the aftermath of 9/11, “Raising the Flag at Ground Zero,” that was posted on Facebook by Fox News. And so it appears we will not get the jury’s guidance on the copyright “fair use” issues raised by the case and discussed in last week’s post, including the broad question whether use on social media should categorically be classified as fair, at least just yet. But questions about the boundaries of fair use press on, and we will continue to look for guidance on these questions in the suit filed late last year against artist Richard Prince, which we wrote about here, for his use of a photo from Instagram in his art exhibit consisting of a number of Instagram photos. In a sense, that case provides the reverse scenario—a photo taken from social media to be viewed as visual, gallery art. It also speaks to the effect of a change in medium for photographs with minimal alteration, as well as questions about commentary and fine art in fair use. We will also look to Fox News v. TVEyes, which we wrote about here, and which is set up for a decision from the Second Circuit this year, about fair use as it concerns newsworthy footage and online research and reference tools. And we note the U.S. Copyright Office’s Fair Use Index as a resource to assist in finding cases where the fair use doctrine is evolving.
After publication, Fox News alerted us to the following statement via The Wrap: Fox News, North Jersey Media Group Resolve Claims Over 9/11 Photo