By Shane Wax
Americans recently faced the twentieth anniversary of the horrifying terrorist attacks on the World Trade Center and the Pentagon. Thousands of innocent lives were lost that day and thousands more either barely escaped or were just far enough away from the collapse of the Twin Towers to leave with only psychological scars. To add insult to injury, hundreds continue to suffer from cancers and other long-term fallout, a cruel punishment for contributing to the recovery of New York City.
In the days that followed, New Yorkers came together; Americans came together; the world came together – we were all New Yorkers. You could have been thousands of miles away, but felt just as terrified as you sat glued to the nearest television sets, witnessing video footage being replayed intertwined with graphic photos from Ground Zero.
When the world witnesses catastrophic and traumatic events like 9/11, we often overlook the people on the ground helping to tell the story – journalists and photojournalists. While technological advancements like radio, television and then the Internet and social media have all played significant roles in the spread of information, there still needs to be a primary source – an author – willing to make the sacrifices necessary to first obtain and release that information.
Anthony Fioranelli got his first taste for disaster photojournalism in the 1990s, in the wake of the 1993 World Trade Center bombing and the 1996 TWA Flight 800 disaster. On 9/11, he was purportedly one of only four photojournalists permitted to remain at the footprint of the Twin Towers to document the rescue efforts and aftermath. You have no doubt seen some of his footage, either in Fioranelli’s own documentary, published on the one-year anniversary of the attacks, or on broadcast television, where it was shown by the likes of CBS, BBC and about a dozen other networks.
In 2014, Fioranelli recognized portions of his work in the film 9/11: Day that Changed the World, and after some investigation, determined that the filmmakers had acquired a license to his footage from BBC, who in turn, had obtained a license from CBS. The only problem was that, while CBS did have a license to use Fioranelli’s 9/11 footage itself, it did not have the right to grant licenses to third parties to permit them to use Fioranelli’s 9/11 footage.
Evidently, back in 2002, CBS created several compilations of video footage related to the 9/11 attacks and their aftermath (“Newsreels”), which it intended to license out “for use as filler, background and building block elements for other video productions.”[1] These Newsreels primarily contained original footage created by CBS but also contained portions of Fioranelli’s footage. CBS then entered into agreements with BBC and T3 (aka Veritone) authorizing those entities to grant sub-licenses for use of these Newsreels to approximately 15 licenses or sub-licenses without authority, who then went on to use Fioranelli’s footage in their respective works.[2]
So, in 2015, Fioranelli sued CBS, BBC, T3 and the 15 film producers for copyright infringement, among other claims, in New York. He also charged CBS and BBC with inducement of copyright infringement. After the defendants successfully moved to dismiss most of the non-copyright claims,[3] a Second Amended Complaint was filed in early 2017, and the parties eventually moved for summary judgment in 2019. By happenstance, those summary judgment motions were decided this past summer, not even 2 months before the twentieth anniversary of the 9/11 attacks.
U.S. District Court Judge Vernon S. Broderick found that there was “no dispute that Defendants ‘actually copied’ Plaintiff’s works'” and thus, his decision primarily turned on “whether the copying meets the ‘threshold of substantial similarity,'” or whether, as Defendants contended, any copying was de minimis and non-actionable.[4] Judge Broderick compared the amount of the Plaintiff’s original work was used in each of the 16 allegedly infringing films, finding that of Plaintiff’s nearly 2 hour, 43 minutes of footage, only 1-43 seconds was used in each film, but that the footage was “in clear focus and occupies, in all but two films, the entirety of the screen.” The Court then found that the Defendants “tacit[ly] admi[t] that the qualitative component is clearly satisfied here,” and, thus, that the copying was actionable and not de minimis.[5]
Having found that the Fioranelli had established a “prima facie” case of copyright infringement, the Court next had to turn to the Defendant’s “fair use” affirmative defense. Judge Broderick examined a long line of Second Circuit Court of Appeals caselaw considering fair use, including this past April’s since-amended decision in The Andy Warhol Foundation v. Goldsmith.[6]
Applying the first fair use factor, the nature of the taking, Judge Broderick found that seven of the sixteen otherwise infringing films were not transformative because those uses did not comment on or critique the 9/11 Footage, but merely republished it for the same purposes as its original publication, i.e., to illustrate and memorialize the events of 9/11. On the other hand, two films were plainly transformative and five others , such as one that promoted conspiracy theories, could be viewed as transformative by jurors. The Judge further noted that a jury could find that at least one of the uses was in bad faith.[7]
As to the second factor, the nature of the original work, the Court held that Fioranelli’s 9/11 footage was “a non-fictional rendering of an event of utmost historical importance,” that Plaintiff “exhibited great artistry in carrying out his task,” and that, as a photojournalist with exclusive access to Ground Zero, the nature of the work was of little important lest photojournalists be put out of work.[8]
As to the third factor, the amount and substantiality of the taking, Court found that the two plainly transformative films “copied no more 9/11 Material than was necessary,” but that the factor was neutral or undeterminable with respect to the remaining films.[9]
However, as to the fourth factor, which is often considered the most important, Judge Broderick found that the fourteen films that weren’t plainly transformative had or would likely have a substantial impact on the market for Fioranelli’s works, noting that freelancers like him rely on licensing royalties that these defendants avoided: “[t]his is exactly the kind of situation that copyright is meant to impact—where unrestricted use would likely dry up the source.”[10]
Ultimately, the Court found that seven films were infringing and not fair use as a matter of law, two films were non-infringing by reason of fair use, and the remaining seven otherwise infringing films would have to be submitted to a jury to determine fair use.
Now, having found that copyright infringement had occurred as a matter of fact and law, Judge Broderick had to determine of CBS, BBC or T3 could be held liable for inducing the subsequent film producers to commit copyright infringement, such that these deeper-pocketed defendants could be held liable for their sublicensee’s infringements. While licensing out copyrighted material that one does not own generally forms the basis of an “inducement” claim, liability requires more – there must be “intent to encourage” the infringement, and in this case, Fioranelli did not present any evidence that CBS or BBC knew that the Newsreels contained infringing material (as opposed to material created by or owned by CBS) when they entered into those sublicenses.[11]
Nevertheless, CBS will be directly liable for making unauthorized reproductions of Fioranelli’s copyrighted material and distributing it to third parties, as well as at least a few of the filmmakers that subsequently used CBS’s Newsreels and Fioranelli’s footage in an unfair manner.
[1] Fioranelli v. CBS Broadcasting, Inc., et al, Civil Action No. 15-cv-952 (VSB), slip opinion p.7 (S.D.N.Y. July 28, 2021).
[2] Id., Slip op. pp. 8-20. The following are excerpts of the Court’s description of each of the sub-licensed uses:
- Rush to War, “an 86- minute political documentary about the motivations for the Iraq War and American foreign policy after 9/11 that was released to the public in 2007,” that uses approximately 1.5 seconds of Fioranelli’s footage;
- Celsius 41.11, “a 71-minute political documentary produced as a conservative response to Michael Moore’s film Fahrenheit 9/11, and was released to the public in 2004,” that uses approximately 1.2 seconds of footage;
- World Trade Center, “a 129-minute docudrama telling the true story of two Port Authority police officers who were trapped in the rubble at Ground Zero, and was released to the public in 2006,” that uses approximately two seconds, together with World Trade Center Featurette, a 53-minute “making of” the aforementioned World Trade Center film, which reproduces the same 2 seconds;
- The Miracle of Stairway B, “a 48-minute documentary telling the story of a group of firefighters and civilians who miraculously survived the collapse of the North Tower of the World Trade Center on 9/11, and was released to the public in 2006,” which uses approximately 26.3 seconds of Fioranelli’s footage;
- Crime Scene 9/11, “a 46 -minute historical documentary telling the story of the recovery and identification effort at Ground Zero from the perspective of first responders, construction workers, volunteers, and others who contributed to the effort, and was released to the public in 2007,” which uses approximately 8.92 seconds of footage;
- How It Was: Voices of 9/11, “a 53-minute documentary from the perspective of radio dispatchers who worked on that day, and was released to the public in 2007,” that uses approximately 9 seconds of footage;
- ZERO: An Investigation into 9/11, “a 123-minute documentary seeking to challenge the official version of the events surrounding 9/11 . . . through interviews with a number of conspiracy theorists”, which uses a one-second clip and was released to the public in 2007;
- Seven Signs of the Apocalypse, “a 92-minute television program exploring a possible connection between modern-day world events and biblical prophecies of the apocalypse, and was released to the public in 2008,” which uses a one-second clip;
- 9/11: Day That Changed the World, “a historical documentary that seeks to detail the events of September 11th, switching between New York, Washington, Pennsylvania and the progress of President Bush around the country, and was released to the public in 2011,” which used 15 seconds of Fioranelli’s footage;
- The Conspiracy Files: 9/11 10 Years On, “a one-hour television program for BBC Two exploring and debunking various conspiracy theories about 9/11, and was released to the public in 2011,” which uses a 1.625 second clip;
- The Miracle Survivor, “a 48-minute documentary investigating the story of a man who claimed he miraculously survived the World Trade Center attack by “surfing” down from the 86th floor as the tower collapsed,” which uses approximately 3 seconds of footage;
- Conspiracy Theory: Death Ray, “a 44-minute episode of the television series hosted by Jesse Ventura exploring a conspiracy about a deadly secret weapon,” which used three seconds of footage;
- The Untold History of the United States, “a ten-part documentary series by Oliver Stone about United States history,” which “uses three clips of the 9/11 Material, in the 58-minute episode 9 of the series, for a total time of approximately 6 seconds”; and
- 9/11 Relics from the Wreckage, a “30-minute documentary for the HISTORY network about the National 9/11 Memorial & Museum and its artifacts” that “uses seven clips of the 9/11 Material, totaling approximately 17.3 seconds.”
[3] Fioranelli v. CBS Broadcasting, Inc., et al, Civil Action No. 15-cv-952 (VSB) (S.D.N.Y. Jan 19, 2017) (dismissing Lanham Act and various state law claims sounding in unfair competition, quasi-contract and equity on the basis that all claims were preempted by the U.S. Copyright Act and/or the contract between the parties).
[4] Fioranelli (July 29, 2021), Slip Op. at 28.
[5] Id. at 28-35.
[6] See Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, No. 19-cv-2420, 992 F.3d 99, 116 (2d Cir. Mar 26, 2021), amended — F.3d — (Aug. 24. 2021).
[7] See Fioranelli (July 29, 2021), Slip op. at 40-61.
[8] Id., at 62-64.
[9] Id., at 64-68.
[10] Id., at 68-71.
[11] Id., at 79-82.