MANHATTAN (CN) – Several years before Donald Trump’s presidency, a disturbed young man made national headlines for stalking the not-yet first daughter Ivanka, inspiring an episode of CBS’s crime drama “48 Hours.”
The episode’s close-up on a photograph of stalker Justin Massler heading to a bail hearing outside of a Manhattan courthouse also provoked a copyright lawsuit, which a federal judge sent to discovery on Friday.
Photojournalist Steven Hirsch snapped the image for the New York Post on April 2, 2010. The tabloid used the Massler’s smiling mug for an article headlined “Ivanka’s stalker ordeal featured crazed talk, threats and bloody pix,” with a caption labeling the then-27-year-old a “‘Net Nut” and featuring Hirsch’s name on the gutter credit.
Massler later pleaded guilty to a two-year campaign of harassment that included threatening tweets, emails, letters and packages sent to Ivanka Trump, and anti-Semitic abuse toward her then-fiancé Jared Kushner.
Some seven years after his arrest, on Feb. 25 this year, CBS featured a screenshot from the Post article on the “48 Hours” episode “Stalked.” But Hirsch claims the network obscured his credit for the two seconds featuring the archived reporting.
Within weeks of its airing, Hirsch filed a lawsuit, and CBS tried to dismiss the case under the fair use doctrine. On Friday, U.S. District Judge Paul Engelmeyer rejected the network’s challenge.
“The court holds that CBS’s claim of fair use cannot be resolved on the motion to dismiss,” he wrote.
Finding that transformative use does not apply, Engelmeyer noted that CBS “simply reproduced a substantial proportion of the photo” in the episode.
“CBS’s claim that appropriating the photo for this purpose was fair use will therefore turn on an assessment of the context and content of the episode,” the 18-page ruling said. “One issue will be whether CBS’s use qualifies as ‘news reporting’ or ‘commentary,’ and thus a favored use under the statute.”
Attorneys for CBS and Hirsch did not immediately respond to requests for comment.