Fox News and Bergen Record operator North Jersey Media Group have settled a closely watched lawsuit alleging that Fox infringed copyright by posting a famous photo of 9/11 on Facebook. Terms of the settlement have not been disclosed.
North Jersey Media Group, which operates the Record and the Herald News, alleged in a September 2014 lawsuit filed in New York that Fox posted the widely publicized photo on its Facebook page for Bret Baier, who hosts "Special Report with Bret Baier."
Many industry observers were closely watching the dispute, which posted questions about use of copyrighted images on social media sites.
The photo, depicting three firefighters raising a flag at the site of the former World Trade Center, was taken by Record photographer Thomas Franklin. North Jersey Media has gleaned more than $1 million in licensing fees for the photo since 2001, according to court papers.
The newspaper owner also alleged in a separate but related lawsuit, first filed in October of 2013, that Fox infringed copyright by posting the same photo to a page for Jeanine Pirro, host of Fox's "Justice with Judge Jeanine." The newspaper initially sued Pirro, but dropped the allegations against her last September.
That matter centered on an image that combined Franklin's photo with a shot of four U.S. Marines raising a flag on Iwo Jima during World War II. A Fox News production assistant found that combined image through Google, and posted it to Pirro's page as part of a 9/11 commemoration, according to court records.
Fox argued in both lawsuits that it was entitled to post the photos under fair use principles. In February of 2015, U.S. District Court Judge Edgardo Ramos ruled in the Pirro matter that Fox was not entitled to "summary judgment" based on fair use.
Ramos ruled that Fox's use of the photo on Pirro's page wasn't transformative -- which is one of the factors judges consider when evaluating fair use. He also ruled that Fox's use of the combined Sept. 11-Iwo Jima image threatened North Jersey Media's ability to license its photo.
The battle between Fox and North Jersey Media grew procedurally messy, when Fox countersued North Jersey Media for allegedly infringing copyright in Fox programs by posting clips from Fox's programs on NorthJersey.com.
The settlement resolves all claims, according to a statement by Fox's outside counsel Dori Ann Hanswirth of Hogan Lovells. She stated through a Fox spokesperson: "Fox News Network, LLC and North Jersey Media Group Inc. have agreed to a confidential settlement of their disputes. As a result of the settlement, North Jersey Media will discontinue its copyright infringement claims against Fox News, and Fox News will discontinue its copyright infringement and unfair competition claims against North Jersey Media."