memorandum of plaintiff in opposition to the motion for reconsideration of defendants jeanine pirro...

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------x

NORTH JERSEY MEDIA GROUP INC., :

Plaintiff, :

-v- 13 Civ. 7153 (ER)

:

JEANINE PIRRO and FOX NEWS

NETWORK, LLC, : ECF Case

Defendants :

---------------------------------------------------------------x

MEMORANDUM OF PLAINTIFF IN OPPOSITION TO THE

MOTION FOR RECONSIDERATION OF DEFENDANTS

JEANINE PIRRO AND FOX NEWS NETWORK, LLC

DUNNEGAN & SCILEPPI LLC

Attorneys for Plaintiff

350 Fifth Avenue

New York, NY 10118

(212) 332-8300

Case 1:13-cv-07153-ER Document 83 Filed 03/19/15 Page 1 of 11

Table of Contents

Table of Authorities ........................................................................................................................ ii

Preliminary Statement .....................................................................................................................1

Argument .........................................................................................................................................2

I. THE COURTS STATEMENT CONCERNING A TARGET AUDIENCE

WAS PROPER, AND DOES NOT PROVIDE ANY BASIS FOR

RECONSIDERATION ............................................................................................3

A. The Court Properly Found That The Pirro Facebook Page Had A

Target Audience ..........................................................................................3

1. Fox News Incorrectly States That The Courts Finding Refers

To The Fox News Channel ....................................................................3

2. The Record Supports The Courts Finding That The Pirro

Facebook Page Has A Target Audience ................................................4

3. The Identity Of The Target Audience Does Not Impact The Courts

Ruling .....................................................................................................5

II. THE COURT DID NOT OVERLOOK ANY LEGAL PRECEDENT ...................6

Conclusion .......................................................................................................................................8


ii

Table of Authorities

Cases

Atl. Recording Corp. v. BCD Music Grp., Inc.,

No. 08 CIV.5201 (WHP), 2009 WL 2046036 (S.D.N.Y. July 15, 2009) ....................................... 2

Campbell v. Acuff-Rose Music, Inc.,

510 U.S. 569 (1994) ........................................................................................................................ 5

Harper & Row Publishers, Inc. v. Nation Enterprises,

471 U.S. 539 (1985) ........................................................................................................................ 5

Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust,

729 F.3d 99 (2d Cir. 2013).............................................................................................................. 2

Kubicek v. Westchester Cnty.,

No. 08 CIV. 372 ER, 2014 WL 4898479 (S.D.N.Y. Sept. 30, 2014) ......................................... 3, 8

Lewis v. Clarkstown Police Dep't,

No. 11 CIV. 2487 ER, 2014 WL 6883468 (S.D.N.Y. Dec. 8, 2014) ............................................. 2

N. Jersey Media Grp. Inc. v. Pirro,

No. 13 CIV. 7153 ER, 2015 WL 542258 (S.D.N.Y. Feb. 10, 2015) ...................................... 1, 3, 6

Parrish v. Sollecito,

253 F. Supp.2d 713 (S.D.N.Y.2003) .............................................................................................. 2

Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd.,

956 F.2d 1245 (2d Cir. 1992).......................................................................................................... 2

Rules

Fed. R. Civ. P. 61 ............................................................................................................................ 7

Local Rule 6.3 ................................................................................................................................. 1

Statutes

17 U.S.C. 107 ............................................................................................................................... 1


Plaintiff North Jersey Media Group Inc. ("NJMG") respectfully submits this

memorandum in opposition to the motion of defendants Jeanine Pirro ("Pirro") and Fox News

Network, LLC (collectively Fox News), pursuant to Local Rule 6.3, for reconsideration of the

Courts denial of Fox News' motion for summary judgment.

Preliminary Statement

In evaluating Fox News fair use defense, the Court analyzed each of the four

factors set forth in 17 U.S.C. 107. For the first factor, the purpose and character of the use, the

Court could not conclude as a matter of law that the Combined Image transformed the Work

sufficiently to merit protection as fair use, N. Jersey Media Grp. Inc. v. Pirro, No. 13 CIV. 7153

ER, 2015 WL 542258, at *6 (S.D.N.Y. Feb. 10, 2015). With respect to the first factor, the Court

also found evidence that Fox News used the Facebook page to promote its program Justice with

Judge Jeanine (the Program), and therefore there was at least a question of material fact as to

whether Fox News posted the Combined Image for the purely expressive purpose of commenting

on the events of September 11, 2001, or whether it did so for the commercial purpose of

promoting the Program. Id. at *9. The Court concluded that the first fair use factor favored

neither party as a matter of law. Id.

In a footnote, the Court stated that comment and promotion were not mutually

exclusive. By commenting that we should not forget the terrible events of 9/11 and honor the

nation's response to them, Fox News was also consciously associating itself with a view

indisputably regarded favorably by most if not all of its target audience. Such uncontroversial

commentary arguably generates goodwill for, and therefore serves to promote, the Program. Id.

at *14, n. 16. The Court continued its analysis of the remaining factors, and ultimately concluded

that it could not resolve the fair defense as a matter of law.


2

Fox News nevertheless moves for reconsideration. Fox News argues that merely

by referring to Fox News target audience in a footnote on page 16, the Court made a serious

factual misstatement which affected the Courts fair use analysis and thus the disposition of

Defendants summary judgment motion. (Dkt. 75 at 4) Fox News also argues that the Court

overlooked "controlling precedent." (Dkt. 75 at 9)

Because the Court did not err in referring to a target audience, because Fox News

identified no decisions or evidence which the Court overlooked, and because Fox News is

merely remaking the same argument already addressed by the Court, the Court should deny

defendants motion.

Argument

A motion for reconsideration should be granted only when the defendant

identifies an intervening change of controlling law, the availability of new evidence, or the need

to correct a clear error or prevent manifest injustice. Kolel Beth Yechiel Mechil of Tartikov,

Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013)(quoting Virgin Atl. Airways, Ltd.

v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.1992)). Reconsideration of a court's

previous order is an extraordinary remedy to be employed sparingly in the interests of finality

and conservation of scarce judicial resources. Lewis v. Clarkstown Police Dep't, No. 11 CIV.

2487 ER, 2014 WL 6883468, at *2 (S.D.N.Y. Dec. 8, 2014)(quoting Parrish v. Sollecito, 253 F.

Supp.2d 713, 715 (S.D.N.Y.2003)). The standard for reconsideration is strict and the decision is

within the sound discretion of the district court. Atl. Recording Corp. v. BCD Music Grp., Inc.,

No. 08 CIV. 5201 (WHP), 2009 WL 2046036, at *1 (S.D.N.Y. July 15, 2009)(internal quotation

omitted). Where the movant fails to show that any controlling authority or facts have actually

been overlooked, and merely offers substantially the same arguments he offered on the original


3

motion or attempts to advance new facts, the motion for reconsideration must be denied.

Kubicek v. Westchester Cnty., No. 08 CIV. 372 ER, 2014 WL 4898479, at *1 (S.D.N.Y. Sept.

30, 2014).

I.

THE COURTS STATEMENT CONCERNING A TARGET AUDIENCE WAS

PROPER, AND DOES NOT PROVIDE ANY BASIS FOR RECONSIDERATION

A. The Court Properly Found That The Pirro Facebook Page Had A Target Audience.

1. Fox News Incorrectly States That

The Courts Finding Refers To The Fox News Channel.

Fox News argues that the Court found that the Fox News Channel (the

Channel) has a target audience. See Dkt. 75 at 4 (The Courts statement about a purported

target audience for Fox News is nowhere in the record, and is, in fact, directly contradicted by

the summary judgment record.). See also Dkt. 75 at 5 (And there is no record evidence

whatsoever concerning any target audience for the Fox News Channel, let alone any views that

are indisputably held by that audience.).

However, the Court made no such finding. Rather, the Court found that the

Jeanine Pirro Facebook page (the Facebook page) had a target audience. The Court stated:

By commenting that we should not forget the terrible events of

9/11 and honor the nation's response to them, Fox News was also

consciously associating itself with a view indisputably regarded

favorably by most if not all of its target audience. Such

uncontroversial commentary arguably generates goodwill for, and

therefore serves to promote, the Program.

N. Jersey Media Grp. Inc. v. Pirro, No. 13 CIV. 7153 ER, 2015 WL 542258, at *14 n. 16

(S.D.N.Y. Feb. 10, 2015). The only arguable "commenting" occurred on the Facebook page, not

on the Channel. The Court was therefore referring to the target audience of the Facebook


4

page, and not the target audience of the Channel. Thus, the gist of Fox News criticism of the

Courts findings is misguided.

2. The Record Supports The Courts Finding That

The Pirro Facebook Page Has A Target Audience.

The record provides evidence that allowed the Court to find that the Facebook

page has a target audience. First, the Court could have easily concluded that the target audience

of the Facebook page was Americans. Jeanine Pirro hosts a television program on an American

cable network. That American cable network maintains a Facebook page under the name of the

Program. It is logical to assume that the majority of people interested in Jeanine Pirro or the

Program would be Americans. Indisputably, an audience of Americans would overwhelmingly

support the comment that we should not forget the terrible events of 9/11 and honor the nation's

response to them.

and features written and photographic content associated with the Program. (Dkt. 35 at 11)

Viewers of the program, who would probably be Americans, would support the comment that

we should not forget the terrible events of 9/11 and honor the nation's response to them.

Second, the Court could have concluded that the target audience of the Facebook

page was viewers of the Program. Georeen Tanner (Tanner), the production assistant who

posted the Combined Image to the Facebook page, testified that her superiors at Fox News liked

that she was engaging the viewers with the Facebook page. (Dkt. 53-1 at 62:3-9; 63:9-21)

Jason Ehrich, the vice president of social media at Fox News, testified that engag[ing] your

audience and [p]romotion of channel programming are part of the general purpose of social

media at Fox News. (Dkt. 53-3 at 40:23-41:15) The Facebook page is named after the Program,

Third, Tanner also testified that [o]lder people are a particular demographic of

the Program. (Dkt. 53-1 at 57:16-18) Because the target audience of the Program is the target


5

forget the terrible events of 9/11 and honor the nation's response to them.

3. The Identity Of The Target Audience Does Not Impact The Courts Ruling.

Regardless of the precise composition of the target audience of the Facebook

page, the Courts point -- that a comment may also serve a commercial purpose -- is valid. See

generally Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 585 (1994)(The use, for example,

of a copyrighted work to advertise a product, even in a parody, will be entitled to less indulgence

under the first factor of the fair use enquiry than the sale of a parody for its own sake, let alone

one performed a single time by students in school.); Harper & Row Publishers, Inc. v. Nation

Enterprises, 471 U.S. 539, 562, 105 S. Ct. 2218, 2231, 85 L. Ed. 2d 588 (1985)(The crux of the

profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but

whether the user stands to profit from exploitation of the copyrighted material without paying the

customary price.). An uncontroversial comment is almost certainly, or at least arguably, a more

effective promotion than a controversial one.

In any event, the target audience of the Facebook page was not dispositive of, or

even material to, the Courts denial of summary judgment. Fox News objects to one phrase in a

footnote on page 16 of the Courts 26-page opinion. The footnote appears after the Court had

decided that (i) the Combined Image is not meaningfully transformative, and (ii) questions of

fact exist as to whether the Combined Image is expressive or commercial in nature. At that

point, the Court had already concluded that the first factor does not favor either party as a matter

of law. The footnotes introductory phrase The Court notes, moreover indicates the

audience of the Facebook page, the Court could conclude that the target audience of the

Facebook page is older People. This audience would also support a comment that we should not


6

ancillary nature of the Courts finding that even if the Combined Image could be considered a

comment, it could still be a commercial promotion.

II.

THE COURT DID NOT OVERLOOK ANY LEGAL PRECEDENT

Fox News states that The Court failed to apply this controlling precedent in its

Order. (Dkt. 75 at 9) However, the Court cited in its opening every case that Fox News cites in

its memorandum in support of reconsideration.

The core of Fox News' argument is that the Court should not consider the

commerciality of the Combined Image because Fox News now classifies it as a comment. Fox

News advanced that argument in its motion for summary judgment:

Defendants used the Work to make a comment about September

11, 2001; thus the inquiry under [the first factor] should be at an

end.

(Dkt. 35 at 20) The Court considered, and rejected, this argument in its Order:

Defendants contend that they used the Work to make a comment

about September 11, 2001, and that the inquiry under the first

factor therefore should be at an end. Defs. Mem. L. 14 (quoting

Wright v. Warner Books, Inc., 953 F.2d 731, 736 (2d Cir.1991)).

However, even assuming the post was designed as commentary,

the Court would still analyze the commercial nature of the use.

See, e.g., NXIVM, 364 F.3d at 47779 (discussing the commercial

purpose of the use despite the court's conclusion that the

defendants' use was transformative as criticism); see also Twin

Peaks Prods., Inc. v. Publ'ns Int'l, Ltd., 996 F.2d 1366, 1374 (2d

Cir.1993) (analyzing the commercial nature of the use despite

finding that the defendants' use was surely a work of

comment).

N. Jersey Media Grp. Inc. v. Pirro, No. 13 CIV. 7153 ER, 2015 WL 542258, at *14 n. 14

(S.D.N.Y. Feb. 10, 2015).


7

The similarity between Fox News old argument for summary judgment and Fox

News new argument for summary judgment is apparent from a comparison of its respective

memoranda on each motion. Compare the following parts of Fox News memorandum in support

of summary judgment (Dkt. 35) and Fox News memorandum in support of reconsideration

(Dkt. 75) (emphasis added):

The fact that Fox News is a commercial

enterprise is irrelevant. After all, the

primary activity in which Fox News

engages (via cablecast programming and

the internet) is news reporting and

commentary, which are uses listed in the

preamble to Section 107 as paradigmatic

examples of fair use. As the Supreme

Court has recognized, Congress could

not have intended a rule that

commercial uses are presumptively

unfair when various uses that are

generally conducted for profit in this

country are listed in the preamble

paragraph of Section 107. Campbell, 510

U.S. at 584. In fact, the Court of Appeals

has repeatedly found that that the first

factor favored the defendant and the use

was fair where the defendant sought to

make a profit. For example, the business

news publisher in Swatch, the artist in

Cariou, the book publisher in Bill Graham

Archives, and the search engine operator

in Google Books all operate in the hopes

of making a profit. (Dkt. 35 at 25-26)

Even assuming for the sake of

argument that there was record

evidence of a target audience for the

Fox News Channel, binding precedent

instructs that this fact would be legally

irrelevant to the fair use analysis...As

the Supreme Court has recognized,

Congress could not have intended

a rule that commercial uses are

presumptively unfair when

various uses that are generally

conducted for profit in this country

are listed in the preample paragraph

of Section 107. Campbell v. Acuff-

Rose Music, Inc., 510 U.S. 569, 584,

594 (1994). Court of Appeals

precedent is in accord. The publisher of

business news in Swatch, the artist in

Cariou, and the book publisher in Bill

Graham Archives all presumably

hoped to connect with a target

audience and to profit from that

connection. (Dkt. 75 at 8)

By arguing that the words target audience was an error on the part of the Court,

Fox News is using what would at most be a harmless error, to be ignored under Fed R. Civ. P.

61, as an opportunity to restate to the Court an argument that the Court has thoughtfully rejected.

Because Fox News did not provide the Court with any controlling authority or

facts that the Court overlooked, and are only offering substantially the same argument as was


8

offered in its original motion, the motion for reconsideration should be denied. See Kubicek,

2014 WL 4898479, at *1 (S.D.N.Y. Sept. 30, 2014) (Where the movant fails to show that any

controlling authority or facts have actually been overlooked, and merely offers substantially the

same arguments he offered on the original motion or attempts to advance new facts, the motion

for reconsideration must be denied.).

Conclusion

For the reasons set forth above, NJMG respectfully requests that the Court deny

the motion of Fox News.

Dated: New York, New York

March 19, 2015

DUNNEGAN & SCILEPPI LLC

By_________________________ William Dunnegan (WD9316)

[email protected]

Richard Weiss (RW4039)

[email protected]

Attorneys for Plaintiff

350 Fifth Avenue

New York, New York 10118

(212) 332-8300

s/William Dunnegan


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