On January 6, 2021, photojournalist Robyn Brody captured footage (here) of Kelly Meggs and other members of the Florida Oath Keepers, attired in military garb, marching in stack formation up the steps of the U.S. Capitol. This group was not engaged in harmless cosplay; this was insurrection. About a month later, the government charged Meggs with seditious conspiracy and other felonies. In support of the criminal complaint, the government submitted the affidavit of an FBI agent who explained that stack formation is "a tactical formation used by infantrymen in the military" in which "members keep their hands on the backs or vests of the person in front of them" so they can maintain "direct physical contact with one another to efficiently communicate with one another, especially in a crowded area." The affidavit included a screenshot from Brody's video, with the "stack" of Oath Keepers circled in red. (See Criminal Complaint, ¶ 17.) 

On January 6, 2021, a local Fox affiliate in Florida marked the one year anniversary of the insurrection by airing a jailhouse interview with Meggs. The screenshot from the criminal complaint is used twice in the news story. First, a cropped version of the image appears for about ten seconds as part of a slow-motion roll over while the reporter says, “in his indictment, federal prosecutors identify Meggs and his coconspirators walking in a stack formation up the Capitol steps.” The screenshot is used again, towards the end of the report, immediately after Meggs tells the reporter that he had entered the Capitol because “the doors were open” and the police “let [him] right in.” (Nothing to see that day other than "mostly peaceful chaos"!) This time, the full image is on screen for approximately sixteen seconds while the reporter provides this voiceover commentary:

"The Feds paint a different picture in Meggs’ indictment, saying this stack Meggs was a part of [was] a mob that aggressively advanced towards the east side rotunda doors, assaulted the officers guarding the doors, threw objects, and spread chemicals towards the officers and the doors and pulled violently on the doors." 

Here's an edited version of the news report, which includes only the first use of the screenshot (at 3:18):

Brody sued Fox for copyright infringement. Fox moved to dismiss pursuant to Rule 12(b)(6) on fair use grounds. District Judge Denise Cote (SDNY) ruled in favor of the defendants, finding that the defendants' inclusion of the image in their news report "unquestionably constitute fair use." 

The defendants hit a grand slam, as the court found that all four statutory factors favored a finding of fair use.

Purpose and Character of the Use. Because the image was used for news reporting - one of the purposes called out in the preamble of § 107 - "there is a strong presumption in favor of fair use." In any event, Fox's use here was transformative because it was reporting on a newsworthy subject, "adding commentary to place Meggs’ charges and the FBI Image in context for the viewer." In addition, the story promoted "public commentary and discussion of Meggs’ criminal complaint." And since the image was included as part of the criminal complaint, it constituted "evidence, making the image an essential part of the story."

The Nature of the Copyrighted Work. Because Brody's video is a factual work, and it had been published previously, the second factor favored a finding of fair use.

The Amount and Substantiality of the Portion Used. The amount and substantiality of the copying was "slight" when compared to the entire video ("a single screenshot was used, as sourced and edited by the FBI"), and especially when taking into consideration the transformative nature of Fox’s use.

Effect on Market/Value of Copyrighted Work. Without elaboration, the court held that Fox's news segments "do not affect the licensing market" for Brody's video. 

Finally, the court acknowledged that the copyright world is waiting anxiously for SCOTUS to rule on Andy Warhol Found, for Visual Arts, Inc. v. Goldsmith (a case we have covered in multiple posts, including this one and this one.) Judge Cote found that the outcome of Andy Warhol Foundation - which considers the circumstances in which the use of photography in a work of art is transformative - was "unlikely to impact the case at issue here, which involves a clear-cut application of the fair use factors in the context of news reporting." 

Postscript: Last year, a jury found Meggs guilty of seditious conspiracy, conspiracy to obstruct an official proceeding, obstruction of an official proceeding, conspiracy to prevent an officer from discharging duties, and tampering with documents or proceedings. He is due to be sentenced next month and faces a maximum of 20 years.

Brody v. Fox Broadcasting Co., LLC, No. 22cv6249 (DLC), 2023 WL 2758730 (S.D.N.Y. April 3, 2023)