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Fox News and New Jersey publisher settle copyright dispute over iconic 9/11 photo

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Fox News host Jeanine Pirro (MSNBC)

A pair of copyright lawsuits over Fox News Network’s use of an iconic photo of three firefighters raising the U.S. flag at the site of the World Trade Center ruins following the Sept. 11 attacks have been settled, an attorney for Fox News said on Tuesday.

North Jersey Media Group (NJMG) “will discontinue its copyright infringement claims against Fox News, and Fox News will discontinue its copyright infringement and unfair competition claims against North Jersey Media,” Dori Ann Hanswirth of Hogan Lovells said in a statement.

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The terms of the deal were confidential and a trial set for Tuesday morning did not go ahead as planned. An attorney for NJMG could not immediately be reached for comment.

NJMG, which publishes The Record and Herald News newspapers, owns the rights to the famous photo, which was taken by then-employee Thomas Franklin. For many Americans, the picture became a symbol of resilience after the hijacked plane attacks on New York and Washington in 2001 that killed nearly 3,000 people.

The publisher sued New York-based Fox News, a unit of Twenty-First Century Fox Inc , in 2013 in the U.S. District Court for the Southern District of New York, after Fox placed the photo on the Facebook page of host Jeanine Pirro, juxtaposed with the World War Two photograph of U.S. Marines raising an American flag on Iwo Jima.

Both sides tried to settle the case last year, agreeing to a deal in April 2015, according to court documents. But the next month, the attorneys told Manhattan U.S. District Judge Edgardo Ramos, who presided over the case, that they were unable to finalize a settlement.

The Woodland Park, New Jersey-based publisher also sued Fox in 2014 over the posting of the 9/11 photograph on the Facebook page of another host, Bret Baier. Fox responded by countersuing against NJMG, claiming the publisher posted various Fox News videos without the broadcaster’s permission. The lawsuits were consolidated for trial.

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Fox said in court papers heading into trial that its uses of the “visually altered, significantly cropped, and low-resolution versions” of the photo were for the purposes of news reporting or commentary and fell under the “fair use” provisions of the Copyright Act.

The cases are North Jersey Media Group Inc v. Fox News Network, LLC, No. 13-cv-7153, and 14-cv-7630, in the U.S. District Court for the Southern District of New York.

(Reporting by Andrew Chung; Editing by Frances Kerry)

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