IP Law Daily, COPYRIGHT—S.D.N.Y.: Fox television news broadcast showing January 6 photo qualified as fair use, (Apr 6, 2023)

By Linda O’Brien, J.D., LL.M.

The display during a local Florida television station news broadcast of a photograph taken from the criminal complaint of a January 6 defendant constituted fair use.

In an infringement action against Fox Broadcasting and its television subsidiary over the display during a local news broadcast of an image from a copyrighted motion picture filmed during the January 6 insurrection at the U.S. Capitol, the purpose of the use of the image was clearly transformative and the television station’s entitlement to a fair use defense was clearly established on the face of the plaintiff’s complaint, the federal district court in New York City has ruled. Thus, the defendant television station’s motion to dismiss was granted (Brody v. Fox Broadcasting Co., LLC, April 3, 2023, Cote, D.).

Robyn Brody is a photographer who owns a copyright in a motion picture that she filmed during the insurrection at the U.S. Capitol on January 6, 2021. The motion picture includes images of Kelly Meggs and other insurrectionists in military style gear marching in a stack formation up the stairs of the Capital building. In February 2021, the government filed a criminal complaint charging Meggs with various federal offenses in connection with the insurrection. The complaint included a screenshot of the motion picture with the stack formation highlighted by a red oval. On January 6, 2022, a reporter at Fox 35, a local television station in Orlando, Florida, conducted a remote interview of Meggs that was included in two Fox 35 television news segments and later hosted on the Fox 35 website. The image from the criminal complaint was shown during both news segments.

In July 2022, Brody filed suit against Fox Broadcasting Co. and its subsidiary Fox Television Stations, LLC which owns the Fox 35 television channel and website (collectively “Fox”), alleging copyright infringement for display of the image during those broadcasts. Before the court was the defendants’ motion to dismiss the complaint in its entirety for failure to state a claim.

Fair use. The court found that the alleged copyright infringement constituted fair use, which was clearly established on the face of the plaintiff’s complaint and incorporated exhibits. The only copyrighted work that the television station used was a single screenshot of the motion picture, annotated by government markings that was taken from a criminal complaint for a high-profile arrest. It was clear that Fox was reporting on a newsworthy subject, adding commentary to place Meggs’ charges and the government image in context for the viewer. Also, the amount of copying was limited when compared to the entirety of the copyrighted work, the court explained.

Furthermore, in terms of the four factors provided in 17 U.S.C. §107 which codified the fair use doctrine, the purpose by Fox of the use of the image was clearly transformative, the court noted. The television station provided news coverage, promoted public commentary of Meggs’ criminal charges, placed the news story in the context of the reporter’s interview with Meggs, the nature of the motion picture was factual and it had been previously published, the amount of copying in light of the purpose of the use was slight, and the two news segments did not affect the licensing market for the motion picture. Under those circumstances, Fox was entitled to a fair use defense that was clearly established by the plaintiff’s complaint as to support dismissal, the court concluded.

The Case is No. 1:22-cv-06249-DLC.

Attorneys: Robert Terry Parker (Rath, Young, & Pignatelli) for Robyn Brody. Steven Glen Mintz (Mintz & Gold LLP) for Fox Broadcasting Co., LLC.

Companies: Fox Broadcasting Co., LLC

Cases: Copyright NewYorkNews