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News reporting use of insurrection photo held to be fair use

Mike Nepple Mark Sableman April 10, 2023

This may be news to the photographers who continue to make claims against news organizations, but use of photographs in news reporting is presumptively fair use, according to a recent decision.

A Fox TV affiliate in Florida, reporting on the first anniversary of the January 6 insurrection, interviewed Kelly Meggs, one of the convicted insurrectionists from jail, and used a portion of a video in which he had been shown marching with other insurrectionists in stack formation up the Capitol steps.

The photographer who took the video from which that photo was taken sued the station for copyright infringement. But in Brody v. Fox Broadcasting, Judge Denise Cote of the U.S. District Court for the Southern District of New York dismissed the action on fair use grounds.

Judge Cote acknowledged that fair use is a defense to copyright infringement, and hence not normally employed on a motion to dismiss. But she found that the photographer’s own complaint and the facts of the case made the circumstances giving rise to the fair use clear.

The photo clearly portrayed a newsworthy event. It had even been used in government filings in the criminal case against Meggs. And the station used the photo to show the circumstances of Meggs’ conduct, which was relevant in light of his claim in his interview that he simply walked through an open door at the Capitol.  

Judge Cote emphasized that “news reporting” and “comment” appear in the preamble of the fair use section of the Copyright Act, as some of the purposes for fair use; under Second Circuit precedent, this creates a “strong presumption” that news reporting uses are fair. She noted that copyright is strongest for artistic works and weakest for “utilitarian” works. And she found that the station’s use of the photo was limited, and justified by its need to convey information so that the public could accurately assess the situation. In these circumstances, she readily found fair used and dismissed the claim.

Mike Nepple and Mark Sableman are partners in Thompson Coburn's Intellectual Property practice group.