September 11 images fair use violation case


A firefighter digs through the rubble. An ambulance emerged from the wreckage. Photographs of these and other dark scenes of downtown Manhattan on September 11, 2001 formed the basis of photojournalist Anthony Fioranelli’s copyright infringement case against several media organizations who allegedly used these photos without permission. . Recently, the SDNY issued a mixed decision on whether the use of these poignant but iconic photos was fair.


The plaintiff Fioranelli was one of four reporters allowed access to Ground Zero immediately after the September 11, 2001 terrorist attack on the World Trade Center (“9/11”). Fioranelli has compiled his raw footage of Ground Zero and registered them with the Copyright Office (the “Content”). CBS licensed the content from Fioranelli and agreed to pay Fioranelli for each use of any part of the content, but then created several newsreels and licensed them to other media organizations without the permission of Fioranelli and without compensating Fioranelli for these subsequent uses. Fioranelli sued CBS and its alleged sublicensees, including BBC, A&E Television Networks and Paramount Pictures (among others), alleging that sixteen works, including CBS news, ten documentaries / docuseries, one docudrama, a featurette “making of , A TV show and two programs exploring / debunking conspiracy theories – infringed its copyright on the content. The parties sought summary judgment, with the defendants seeking a court ruling that their use was de minimis and fair.

By Minimis Use

While it is not disputed that the defendants actually copied the content of Fioranelli, the parties disputed whether the copied amount was legally liable to prosecution. The defendants relied on a quantitative analysis, arguing that because they only used a small part of the total Fioranelli sequence, their use was de minimis.

The court disagreed, holding that the quantitatively brief display of a copyrighted work by a defendant, “when visibly displayed, may give rise to an action.” Applying this standard, the court found that the defendants prominently displayed content in fourteen of the sixteen contested works, which contained a full-screen representation of Fioranelli’s content. The court noted that the content was “not mere background images” but was “clearly observable” and “the focal point of the film when shown”. The court further found that the two remaining works – a docudrama and its “making of” featurette – used the content as the focal point of an entire scene and were also not de minimis. Accordingly, the court dismissed the defendants’ motion for summary judgment on de minimis use, noting that the qualitative importance of the uses of the defendants (that is to say, to occupy an entire screen or as a focal point for the viewer) outweighed the quantitative brevity of such uses.

Fair use

With respect to the defendants’ motion for summary judgment on fair use, the court analyzed the four familiar factors of fair use.

Regarding the second factor (the nature of the copyrighted work), the court found that photojournalism (like Fioranelli’s content) consists mainly of non-fictitious renditions of historical events and excludes often substantial displays of creativity. As such, the nature of the content, which was non-fictional and historical, weighed in favor of the defendants.

As to the fourth factor (the effect on the potential market of the copyrighted work), the court held that the defendants’ uses were paradigmatic of the Content market, that is to say, licensing of media organizations and “a clear substitute” for Fioranelli content. The court also found that allowing CBS to sublicense the content to other media organizations without compensating Fioranelli for those sublicensed uses would have a serious impact on independent photojournalists, who search for footage in the hope. to charge license fees for their work. Accordingly, the court concluded that the fourth factor weighed against the defendants.

As to the first and third factors, the court analyzed the alleged offenses separately. With regard to the first factor (the purpose and character of the use), the tribunal found that some alleged violations were transformative, while others were not, and further found that for some alleged violations, the issue of fair use could not be decided on summary judgment. Although the court agreed with Fioranelli that each of the defendants’ uses was commercial in nature, which tends to weigh against fair dealing, it concluded that this was not determinative of the various fair use determinations.

The court found that seven of the contested works were not transformative because none incorporated Fioranelli’s content for comment or criticism, and because those works shared the original purpose of Fioranelli’s content – to inform the viewer of this. that happened on September 11 and its aftermath. . In particular, the court held that “[t]The expressive objective of the original use and the secondary use are the same ”, and that the use by the defendants of unmodified copies of the content of Fioranelli to achieve the same objective that Fioranelli sought to achieve, led the court to conclude that such uses were not transformative.

As for seven other of the disputed works (which included the religious TV program and programs exploring / debunking conspiracy theories), the court declined to make a summary judgment fair use decision, relying in part on the arguments of the defendants that their use was transformative because it served a different purpose than Fioranelli’s in creating the content. For example, the court noted that programs exploring / debunking conspiracy theories were intended “to educate viewers on the conspiracy theories surrounding September 11,” which was not Fioranelli’s original goal. Likewise, the court held that a reasonable juror could conclude that the use of Fioranelli’s content to construct a political argument was a sufficiently different purpose to potentially make the use transformative. Therefore, the court concluded that this was a matter to be decided at trial.

The court also found that a docudrama and its “making of” featurette were transformative. The docudrama was a fictional retelling of a story of two policemen trapped in the rubble of Ground Zero, in which Fioranelli’s content is superimposed on the television that the family of a fictional policeman is watching. The court concluded that the docudrama used Fioranelli’s content creatively to build a unique fictional setting, not to record or share the story. As such, the docudrama’s use of Fioranelli’s content has proven to be transformative. As for the “making of” featurette, the court felt that its purpose was to provide insight into the rationale for the cinematic choices made in the film, making this transformation transformative as well.

Regarding the alleged unauthorized use of the content by CBS, the court ruled that the first fair use factor favored Fioranelli for the additional reason that the offense was in bad faith, as CBS removed a watermark that read ” NOT FOR BROADCAST ”footage of Fioranelli before CBS used the footage content in its news. The court ruled that this decision, along with the fact that the use of CBS duplicated Fioranelli’s original purpose and was commercial in nature, led the first factor to weigh slightly in Fioranelli’s favor.

In analyzing the third factor (quantity and substantiality of the use), the court referred to its de minimis use analysis and declined to adopt the defendants ‘mathematical and quantitative approach, examining instead whether “the scope of the defendants’ copy is consistent or more than necessary to promote the purpose and character of the use” . For seven works found to be non-transformative, the court found this factor neutral, and for seven more works, the court left this decision for trial, as reasonable jurors might disagree on whether the defendants have used more copyrighted material than necessary for the purpose of each work. For the two uses that the court found transformative (the documentary film and the feature film), the court ruled that the few seconds of copyrighted material shown on stage television were “no more than necessary to ensure the viewer understands that the family was watching the events of September 11 unfold on television.

In sum, the court concluded that the seven non-transformative uses (the two newsreels and six historical non-political documentaries) were not fair dealing; that the two transformative uses (docudrama and feature film) were fair use; and that for the remaining seven works, fair use could not be decided by summary judgment.

The case is Fioranelli v. CBS Broad. Inc., n ° 15-CV-0952 (VSB), 2021 WL 3372695 (SDNY July 28, 2021).

© 2021 Finnegan, Henderson, Farabow, Garrett & Dunner, LLPRevue nationale de droit, volume XI, number 265


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