A New York photographer is accusing Fox News Network LLC of copyright infringement for allegedly reproducing a photo he took of Alexandria Ocasio-Cortez and using it for a television broadcast.
Fox News violated copyright law via the “unauthorized reproduction and public display” of a photo of Ocasio-Cortez taken by plaintiff Jesse Korman, the photographer alleged in a complaint filed in the U.S. District Court for the Southern District of New York.
Fox News in February 2019 ran a photograph of Ocasio-Cortez on the Fox News Channel, Korman alleged. Korman claims that “Fox News is not, and has never been, licensed or otherwise authorized to reproduce, publicly display, distribute and/or use the Photograph.”
“Upon information and belief, the foregoing acts of infringement by Fox News have been willful, intentional, and purposeful, in disregard of and indifference to Plaintiff’s rights,” Korman said in his complaint.
Yet whether the lawsuit has legs is a different story.
The copyright statute says defendants are liable for infringement if they take someone else’s work, James Sammataro, co-chair of Pryor Cashman LLP’s Media + Entertainment Group, said. But using a photograph for context during a news broadcast is arguably a fair use, he said.
“The defendant can prove that the use was fair and therefore not subject to liability,” Sammataro said.
However, if the photo is viewed as being used for commercial purposes and isn’t transformative, or used in a new way, then “it’s not going to weigh in defendant’s favor,” he said.
Some think that the dispute appears fairly clear cut.
Annemarie Bridy, professor of law at the University of Idaho, said in a direct message via Twitter, “At first glance, it does not appear that Fox has a credible fair use claim.”
“The use is commercial and non-transformative. The photo itself is not news; it’s just being used to illustrate a story about AOC. News publishers traditionally license this kind of use,” Bridy said.
Cause(s) of Action: Copyright infringement
Relief: Damages, profits from infringement or statutory damages, attorneys fees, pre-judgment interest
Response: A Fox News spokesperson declined to comment on the pending litigation.
Attorneys: Liebowitz Law Firm PLLC, a firm known for filing copyright infringement lawsuits on behalf of photographers, represents the plaintiff.
The case is Korman v. Fox News Network, LLC,S.D.N.Y. No. 1:19-cv-06918. Complaint filed 7/24.
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(Updated with additional reporting.)