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

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 2 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

Case 1:13-cv-07153-ER Document 83 Filed 03/19/15 Page 3 of 11

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

ii

Case 1:13-cv-07153-ER Document 83 Filed 03/19/15 Page 4 of 11

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.

Case 1:13-cv-07153-ER Document 83 Filed 03/19/15 Page 5 of 11

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

Case 1:13-cv-07153-ER Document 83 Filed 03/19/15 Page 6 of 11

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

Case 1:13-cv-07153-ER Document 83 Filed 03/19/15 Page 7 of 11

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.
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,
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.
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
4

Case 1:13-cv-07153-ER Document 83 Filed 03/19/15 Page 8 of 11

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
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

Case 1:13-cv-07153-ER Document 83 Filed 03/19/15 Page 9 of 11

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).

Case 1:13-cv-07153-ER Document 83 Filed 03/19/15 Page 10 of 11

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. AcuffRose 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
7

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

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

s/William Dunnegan
By_________________________
William Dunnegan (WD9316)
wd@dunnegan.com
Richard Weiss (RW4039)
rw@dunnegan.com
Attorneys for Plaintiff
350 Fifth Avenue
New York, New York 10118
(212) 332-8300