MANHATTAN (CN) - Should Fox News pay $150,000 for its use of a copyrighted photograph from the rubble of the World Trade Center?
The question will go to a federal jury, giving life to the media conglomerate's motto, "We report, you decide."
North Jersey Media Group brought the lawsuit at issue, accusing Rupert Murdoch's network and its on-air personality Jeanine Pirro of infringing on an iconic shot of three firefighters raising the flag over Ground Zero.
After the image received widespread attention, Bergen Record photographer Thomas Franklin wrote in an article about it that he did not initially know that his "instincts would grow into a national symbol of patriotism."
Nor did Franklin know, his employer alleges, that Fox News would swipe the image to promote the show "Justice With Judge Jeanine" on its Facebook page.
Fox cropped a smaller, lower-resolution copy of the picture, juxtaposed it with the photograph "Raising the Flag on Iwo Jima," and added the Twitter hashtag "#neverforget."
The network insisted that this qualified as "transformative use" under the fair-use doctrine.
But U.S. District Judge Edgardo Ramos found the changes "barely discernible" Tuesday, in a 26-page opinion that may bring the case before a jury.
"Despite defendants' claims regarding their use of the work, however, the court cannot conclude as a matter of law that the combined image transformed the work sufficiently to merit protection as fair use," he wrote. "As plaintiff asserts - accurately in the court's view - the alterations to the work are 'barely discernible' unless the viewer is specifically prompted to look for them."
To the "casual observer," the Fox image appears to be the same work with "only the hashtag added," he said.
Ramos added that the hashtag Fox added "was a ubiquitous presence on social media that day."
"Thus Fox News' commentary, if such it was, merely amounted to exclaiming 'Me too,'" he wrote.
"Analyzed from that perspective, the posting does not begin to constitute the creation of 'new information, new aesthetics, new insights and understandings' required for finding a transformative purpose," the opinion states.
North Jersey Media Group's lawyer William Dunnegan of Dunnegan LLC declined to comment.
Pirro's attorney, Dori Hanswirth with Hogan Lovells, has not returned a request for comment.
A Fox News spokeswoman said only: "We are going to continue with the case."
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