#NeverForget and The Transformative Value of Social Media
Is publication on social media enough to warrant finding fair use of another’s image? Fox News seems to think so. Well, at least in one context. Last week, the network put their bid in for an appeal of a New York district court order which denied them a fair use defense for re-posting an iconic 9/11 photo on one of their program’s Facebook page. The outcome of the appeal could have huge implications in determining whether your Facebook post or Tweet is breaking the law or is an inherently permissible action.
Regarding the post at issue, a production assistant from the Fox News show, Justice with Judge Jeanine, performed a Google search to find an illustrative photo of 9/11 in order to commemorate the 12th anniversary of the attacks. The search yielded the renowned Thomas E. Franklin photo of three firefighters raising the flag at ground zero. Recognizing its obvious similarity to the photo of U.S. Marines raising the flag at Iwo Jima during World War II, the assistant adjoined the two images. With the simple addition of #neverforget, the combined image was then uploaded to the Facebook page of Justice with Judge Jeanine. Other than that simple juxtaposition and the hashtag, the photos were left unaltered.
The 9/11 image is still owned by the publisher of New Jersey-based newspapers The Record and Herald News. To date, it has netted over $1 million in licensing revenue. North Jersey Media Group (the parent company) sued the television personality (Jeanine Pirro) and Fox News for copyright infringement. In defense, the network raised the fair use flag. Yet, Judge Ramos, for the Southern District of New York, declined to find that the network’s use of the historical photograph was “substantially transformative.” Fox wholeheartedly disagrees with this ruling and believes it overlooks the inherently transformative power of social media.
Is a Facebook Post Transformative Enough to Qualify as Fair Use?
If the Second Circuit takes the case, the ruling could have massive implications for how the fair use doctrine is applied to social media. The focus of the debate is on the first of four factors in the fair use analysis – namely, the purpose and character of the use. The question presented in the network’s memorandum is whether, “[f]or fair use purposes… a secondary user may transform a visual work by placing that work in a new context and for a new purpose, without substantial physical alterations.” 
At the trial level, Judge Ramos answered this question ‘no.’ In response, Fox claims that the judge’s inquiry was limited in scope. His analysis on this particular factor only assessed the minimal physical alteration of the photo and the simplicity of the hashtag line. Indeed, the Judge concluded that, “Fox News’ commentary, if such it was, merely amounted to exclaiming ‘me too’,” on a day when the phrase ‘#neverforget’ was a ubiquitous presence on social media.
What Fox would like the courts to understand is that there is a unique and inherent transformative quality to social media. Expression on these platforms is inextricably intertwined with ‘comment’ and ‘criticism,’ purposes that the Copyright Act of 1976 sets forth as presumptively fair. The motion states:
“Unlike the legacy media that was known to Congress in the 1970s, however, social media is transformative by design. Every post is an invitation for others to comment and criticize; every message and image invites reciprocal expression.” 
In its motion for an interlocutory appeal, the network is asking for a “context-sensitive test” for transformative use, whereby the use’s particular context should factor into the equation. The consequence of not recognizing such a test, the network claims, is a proscription on a wide swath of ongoing online speech.
Undoubtedly, millions of Americans have a strong interest in this. The average person has no idea that a post, Tweet, or a pin of another’s visual work is likely to be infringing. Most would not go so far to think that the way one “shares” on social networks is a violation of federal law.
Why a Context-Sensitive Test Probably Won’t Work
As tempting as it is to join Fox’s free speech parade, there are a few issues with this reasoning.
First, the network is taking the Copyright Act’s leniency towards ‘comment and criticism’ a bit too far. As the Supreme Court instructed in previous landmark cases, the central purpose of the first factor inquiry is to see whether the new work merely supersedes the object of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message. Further, “a use is transformative if it does something more than repackage or republish the original copyrighted work.”
If the court accepts Fox’s reasoning, then posting, sharing, Tweeting and pinning of other’s copyrighted works may be seen as transformative enough to qualify as fair use – even without substantially altering the underlying work. This means millions of Pinterest, Twitter, Facebook, or Instagram users can escape liability for copyright infringement merely from the action of posting the underlying work to a social platform. The focus is askew. The question worth asking is whether the defendant’s new work is in itself making a comment or critique. It is not whether the defendant’s work invites commentary from others.
Another concern is Fox’s warning, “[i]f 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 copyright of others.” This caveat makes one wonder whether Fox believes law should conform to people’s actions or whether people should change their behavior to comply with the law? From one perspective, their argument is a refashioning of fair use, whereby a re-post and a clever caption may be enough to supply a get-out-of-jail free card for copyright infringement.
Even Fox News seems to be confused on which side to take. The same entity is currently pursuing a case against TVEyes, a media monitoring service that a judge last year found to have transformative value. Customers of TVEyes (such as MSNBC, CBS, ABC, Reuters, the White House, the Department of Defense, the American Red Cross, and the Association of Trial Lawyers) create customized search terms and are able to get access to transcripts and video clips. Fox News states that this service competes with its own authorized clip service and is a machine of infringement.
The trial court judge, on the other hand, says: “By indexing and excerpting all content appearing in television, every hour of the day and every day of the week, month and year, TVEyes provides a service that no content provider does. Subscribers to TVEyes gain access, not only to the news that is presented, but to the presentations themselves, as colored, processed, and criticized by commentators, and as abridged, modified, and enlarged by news broadcasts.” 
Sounds like Fox is struggling to swallow its own pill. That’s probably because letting TVEyes pass as fair use means other networks can more easily criticize how Fox News conducts its news reporting. In Fox’s eyes that’s probably not worthy of the same protection.
Undoubtedly, this area of the law is murky. The confusion that Fox experiences only serves to illustrate the legal disarray. After all, Fox does make a point: the Copyright Act of 1976 was not drafted with the digital age in mind. In many ways, the law should change to fit our modern needs. Thus, if the New Jersey Media Group v. Fox News case gets to the Second Circuit, then there is a grand opportunity for the Court to clarify permissible uses of visual works in social media.
 Amended Opinion and Order. N. Jersey Media Group, Inc. v. Fox News Network and John Does Nos. 1-15, No. 1:13-cv-07153-ER, Doc. 71. (SDNY, Feb. 10, 2015).
 Memorandum of Law in Support of Defendants’ Motion for Certification of February 10, 2015 Order for Interlocutory Appeal, N. Jersey Media Group, Inc. v. Fox News Network and John Does Nos. 1-15, No. 1:13-cv-07153-ER, Doc. 82 (SDNY, March 19, 2015).
 Amended Opinion and Order, p. 15.
 Memorandum of Law, p. 6.
 Campbell v. Acuff-Rose, 510 U.S. 569, 579 (1994).
 Author’s Guild, Inc. v. HathiTrust, 755 F.3d 87, 96 (2d Cir. 2014).
 Memorandum of Law, p. 2-3.
 Fox News Networks, LLC v. TVEyes, Inc., 1:13-cv-05315-AKH, Doc. 86 (SDNY, Sept. 9, 2014).