Case 1:13-cv-07153-ER Document 126 Filed 12/21/15 Page 1 of 23

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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NORTH JERSEY MEDIA GROUP INC.,
Plaintiff,

:
:

-against-

13 Civ. 7153 (ER)
:

FOX NEWS NETWORK, LLC,

ECF Case

:
Defendant.
---------------------------------------------------------------x
NORTH JERSEY MEDIA GROUP INC.,
Plaintiff,
-againstFOX NEWS NETWORK, LLC,
Defendant.

:
:
:

14 Civ. 7630 (ER)

:

ECF Case

:

---------------------------------------------------------------x
JOINT PRETRIAL STATEMENT
In accordance with Rule 26(a)(3) of the Federal Rules of Civil Procedure and the
Individual Practices of this Court, plaintiff North Jersey Media Group Inc. (“NJMG”) and
defendant Fox News Network, LLC (“Fox News”) respectfully submit the following joint
pretrial statement. The parties reserve the right to supplement their portions of this statement
based upon (i) additional discovery received from the other party subsequent to the submission
of the this statement, or (ii) the outcome of the Fox News’ dispositive motion for summary
judgment, which is presently sub judice.
(i)

Caption.

The caption, or captions, of the action, or actions, is, or are, set forth above.

 Case 1:13-cv-07153-ER Document 126 Filed 12/21/15 Page 2 of 23

(ii)

Trial Counsel

Trial counsel for NJMG are:
William Dunnegan
wd@dunnegan.com
Laura Scileppi
ls@dunegan.com
Richard Weiss
rw@dunnegan.com
Dunnegan & Scileppi LLC
350 Fifth Avenue, 49th Floor
New York, New York 10118
(212) 332-8300 (Phone)
(212) 332-8301 (Fax)
Trial counsel for defendant Fox News are:
Dori Ann Hanswirth
dori.hanswirth@hoganlovells.com
Nathaniel Boyer
nathaniel.boyer@hoganlovells.com
Benjamin Fleming
benjamin.fleming@hoganlovells.com
Patsy Wilson
patsy.wilson@hoganlovells.com
Hogan Lovells US LLP
875 Third Avenue
New York, New York 10022
(212) 918-3000 (Phone)
(212) 918-3100 (Fax)
(iii)

Subject Matter Jurisdiction.

The Court has subject matter jurisdiction in this action pursuant to 28 U.S.C. § 1338
because NJMG’s claims for copyright infringement arise under 17 U.S.C. § 101 et seq.
(iv)

Claims and Defenses.

NJMG’s Statement of Its Claims
NJMG is asserting two claims for copyright infringement against Fox News.

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NJMG’s copyrighted work is a photograph of three New York City firemen raising the
American flag upon the ruins of the World Trade Center on the afternoon of September 11, 2001
(the “Photograph”). Thomas E. Franklin (“Franklin”), then an employee of NJMG, took the
Photograph while acting within the scope of his employment. NJMG registered the copyright in
the Photograph effective October 5, 2001, and received from the Register of Copyrights U.S.
Certificate of Copyright Registration No. VA 1-014-297. Fox News infringed this copyright in
the Photograph, twice, by posting a derivative work (or altered version) of the Photograph to two
Facebook pages Fox News manages for the purpose of (i) promoting its television programs, and
(ii) promoting commercial websites from which Fox News receives advertising revenue. The
first infringement occurred on or about September 11, 2013, on the Facebook page Fox News
maintained for its program “Justice with Judge Jeanine.” The second infringement occurred on
or about September 11, 2014, on the Facebook page Fox News maintained for its program,
“Special Report with Bret Baier.”
Fox News’ Statement of Its Defenses
(1) Fair Use: Fox News maintains that its uses of visually altered, significantly cropped,
and low-resolution versions of the Photograph on Facebook pages associated with Fox News
personalities were “fair,” and thus not infringements of copyright. See 17 U.S.C. § 107. This
defense was the subject of two substantial motions for summary judgment—one of which was
the subject of a 26-page opinion and order on February 10, 2015, and the other of which is sub
judice—and can be summarized as follows. The first of the four factors weighs in Fox News’
favor because its uses were for the purposes of news reporting and/or commentary; were
transformative, both visually and in their purposes; and were not commercial speech. The
second factor weighs in Fox News’ favor because the Photograph is a previously published,

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factual work. The third factor weighs in Fox News’ favor because Fox News’ uses were
reasonable in relation to the purposes for which Fox News made the uses. The fourth factor
weighs in Fox News’ favor because there is no evidence that Fox News’ uses have caused any
harm to any legitimate market for NJMG’s Photograph. These factors—coupled with other
considerations, such as how Fox News’ uses advance the overall goals of the Copyright Act and
the dissemination of free speech—demonstrate that Fox News’ uses were fair. See 17 U.S.C.
§ 107.
(2) De Minimis Use. Fox News’ uses of the Photograph were de minimis. Almost no
protectable elements of the Photograph were used. With respect to the allegedly infringing post
to the Facebook page associated with Bret Baier, the timing of the comments to the post strongly
suggests that Fox News’ use was only fleetingly displayed. Similarly, the allegedly infringing
post to the Facebook page associated with Jeanine Pirro was removed within six days of its
posting, thus ensuring that Fox News’ use of the image was only fleetingly displayed.
(3) Waiver and Equitable Estoppel. NJMG intentionally relinquished its right to bring
copyright infringement claims against Fox News for these uses via its conduct in relation to the
Photograph (by, among other things, providing Fox News with gratis copies of the Photograph to
display on the Fox News Channel in connection with historical remembrance of September 11).
For similar reasons, NJMG is also equitably estopped from pursuing infringement claims now.
(4) Unclean Hands. In its prior uses and licensing of the Photograph, NJMG committed
several transgressions relating to an affiliation with an entity known as The Bravest Fund and its
attorney, William P. Kelly, who was investigated by the New York State Attorney General’s
Office for allegedly embezzling money intended for charitable purposes. For these reasons,
NJMG has come to this Court with unclean hands.

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(5) Failure to Mitigate Damages. In June 2014, NJMG was presented with evidence
that Fox News had a license to use the Photograph through the Associated Press (the “AP”), and
that NJMG was entitled to a share of the $250 sublicensing fee that Fox News paid to the AP.
NJMG refused to accept the payment. In refusing to do so, NJMG failed to mitigate its damages.
(6) The First Amendment of the United States Constitution. NJMG is attempting to
stifle Fox News’ First Amendment right to freedom of speech, for the reasons stated in
connection with Fox News’ fair use defense.
(7) Lack of Ownership of Copyright. Thomas Franklin, the photojournalist who
created the Photograph, did not do so in a capacity as an employee of NJMG within the meaning
of the Copyright Act and applicable case law interpreting the work for hire provisions of the
Copyright Act. See 17 U.S.C. §§ 101, 201. For this reason, NJMG does not own (and has never
owned) the copyright in the Photograph, and therefore, it has no claim for copyright
infringement.
(8) License. Fox News obtained a license to use the Photograph when Mr. Franklin
appeared on the September 11, 2011 edition of Studio B with Shepard Smith, a Fox News
Channel program.
(9) Not in Public Interest / No Irreparable Harm / No Injunction. To the extent
NJMG is seeking a permanent injunction, NJMG cannot satisfy the stringent elements required
to obtain an injunction. Among other reasons, NJMG cannot show that it has and would suffer
“irreparable harm” as a result of Fox News’ uses of the Photograph, and it cannot show that an
injunction on Fox News’ speech would be in the “public interest.” Further, with respect to one
of Fox News’ alleged uses, Fox News removed it from the Facebook page.

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(10) Limited Damages. A discussed infra Part (ix), should an infringement be found,
any such infringement(s) were “innocent”—and certainly not “willful”—and thus, NJMG should
recover no more than $200 in statutory damages.
Claims and Defenses Previously Asserted that Are Not to Be Tried
(1) Copyright Infringement Against Jeanine Pirro in 13 Civ. 7153. On August 28,
2015, NJMG filed a letter with the court seeking to dismiss its claim against Ms. Pirro, with
prejudice. See Dkt. No. 99. On September 28, 2015, the Court dismissed NJMG’s claim against
Ms. Pirro, with prejudice. See Dkt. No. 105.
(2) Copyright Infringement Against John Does Nos. 1-5 in 14 Civ. 7630. On June 1,
2015, NJMG filed a notice of voluntarily dismissal dropping its claim against “John Does Nos.
1-5.” See Dkt. No. 19.
(3) Copyright Misuse in 13 Civ. 7153. Fox News asserted this defense in its Answer to
the Amended Complaint. See Dkt. No. 15, Twelfth Affirmative Defense.
(4) Fox News’ Video Counterclaims in 14 Civ. 7630. The Court has severed Fox
News’ counterclaims (and NJMG’s associated third-party indemnification claims) from NJMG’s
infringement claim, which is scheduled for trial on January 11, 2015. See Dkt. No. 87.
(v)

Jury Trial.

The case will be tried by a jury—except for NJMG’s request for equitable relief and Fox
News’ equitable defenses (“equitable estoppel,” unclean hands” and “not in public interest / no
irreparable harm /no injunction”), which will be decided by the Court. The parties expect that
the trial should take 3-4 days.
(vi)

Consent to a Magistrate Judge.

The parties do not consent to a trial before a Magistrate Judge.

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(vii)

Stipulations

The parties do not stipulate to the truth of any facts.
(viii)

Witnesses

NJMG’s Witnesses
NJMG expects to call the following witnesses:
Jennifer Borg, Esq.
North Jersey Media Group Inc.
1 Garret Mountain Plaza
Woodland Park, New Jersey 07424
Ms. Borg will testify consistently with her deposition in this action and concerning the
business of NJMG, the employment status of Mr. Franklin on September 11, 2001, the
registration of the Photograph with the U.S. Copyright Office, NJMG’s licensing activities, its
enforcement program and the infringing activities of Fox News.
Thomas E. Franklin
Montclair State University
1 Normal Avenue,
Montclair, New Jersey 07043
Mr. Franklin will testify consistently with his deposition in this action and concerning the
Photograph, including its creation on September 11, 2001.
Amre Youssef
North Jersey Media Group Inc.
1 Garret Mountain Plaza
Woodland Park, New Jersey 07424
Mr. Youssef will testify consistently with his deposition in this action and concerning
NJMG’s licensing of the Photograph and NJMG’s licensing of NJMG content.
Georeen Tanner
Fox News Network, LLC
1211 Avenue of the Americas
New York, New York 10036

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Ms. Tanner will testify concerning a variety of issues, including the posting of the Pirro
Image on the Justice with Jeanine Pirro Facebook Page and the content, maintenance, and
purpose of the Pirro Facebook Page.
Katy Ricalde
Fox News Network, LLC
400 North Capitol Street NW
Washington, D.C. 20001
If she testifies live at trial, Ms. Ricalde will testify concerning a variety of issues,
including the posting of the Baier Image to the Special Report with Bret Baier Facebook Page
and the content, maintenance, and purpose of the Baier Facebook Page.
Dianne Brandi, Esq.
Fox News Network, LLC
1211 Avenue of the Americas
New York, New York 10036
Ms. Brandi will testify concerning a variety of issues including Fox News’ revenues, Fox
News’ policies and procedures in relation to the licensing the content of third parties, Fox News’
previous licensing of the Photograph, and Jeanine Pirro’s involvement in the posting of the
Photograph to the Pirro Facebook Page.
Martin Finn
Fox News Network, LLC
1211 Avenue of the Americas
New York, New York 10036
Mr. Finn will testify concerning a variety of issues, including the practice of Fox News in
obtaining licenses from third parties.
Jason Ehrich
Fox News Network, LLC
1211 Avenue of the Americas
New York, New York 10036

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Mr. Ehrich will testify concerning a variety of issues, including Fox News’ social media
strategy.
Dan Cohen
Fox News Network, LLC
1211 Avenue of the Americas
New York, New York 10036
Mr. Cohen will testify concerning a variety of issues, including Fox News’ purchase of a
license for the Photograph for use on the “Hannity” show of Fox News on or about August 28,
2014.
Fox News’ Witnesses
Fox News expects to call the following ten (10) witnesses:
Jennifer Borg, Esq.
North Jersey Media Group Inc.
1 Garret Mountain Plaza
Woodland Park, New Jersey 07424
Ms. Borg will testify concerning the business of NJMG; facts surrounding NJMG’s
contention that Mr. Franklin was an employee on September 11, 2001; the registration of the
Photograph with the U.S. Copyright Office; NJMG’s history licensing the Photograph; NJMG’s
cancelation of its agreement with Associated Press; and NJMG’s enforcement strategy of suing
alleged infringers and extracting settlements as its primary way of benefiting from its alleged
copyright in the Photograph.
Dianne Brandi, Esq.
Fox News Network, LLC
1211 Avenue of the Americas
New York, New York 10036
Ms. Brandi will testify concerning Fox News’ reliance on the fair use doctrine in the
course of fulfilling its mission to provide news, information, and commentary; practices in

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 Case 1:13-cv-07153-ER Document 126 Filed 12/21/15 Page 10 of 23

relation to licensing the content of third parties; Fox News’ previous licensing of the Photograph;
and NJMG’s failure to mitigate its damages.
Dan Cohen
Fox News Network, LLC
1211 Avenue of the Americas
New York, New York 10036
Mr. Cohen will testify concerning Fox News’ license for the Photograph for use in a Fox
News program in August 2014, and licensing content from Getty Images generally.
Thomas E. Franklin
Montclair State University
1 Normal Avenue
Montclair, New Jersey 07043
Mr. Franklin will testify concerning his relationship with NJMG; the creation of the
Photograph on September 11, 2001; NJMG’s licensing of the Photograph; and Mr. Franklin’s
other experiences and actions in relation to the Photograph.
Zachary Friedman
Fox News Network, LLC
1211 Avenue of the Americas
New York, New York 10036
Mr. Friedman will testify concerning the lack of a connection between the Pirro and
Baier Facebook pages, on the one hand, and internet ad sales revenue, on the other hand.
Madeline Grenadier
The Automotive Advertising Agency
706 W Ben White Blvd
Ste 202, Bldg B
Austin, Texas 78704
Ms. Grenadier will testify regarding her interactions with NJMG in connection with her
September 2014 request to license the Photograph for use on a social media page.
Dominick Rossi
Fox News Network, LLC
1211 Avenue of the Americas

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New York, New York 10036
Mr. Rossi will testify concerning the lack of a connection between the Pirro and Baier
Facebook pages, on the one hand, and TV ad sales revenue, on the other hand.
Dr. Aram Sinnreich
American University
School of Communication
4400 Massachusetts Avenue, NW
Washington, DC 20016
Dr. Sinnreich is an expert witness and academic whose work focuses on the intersection
of media, culture, law and technology. He will testify on all matters contained in his expert
report, including how and why NJMG’s licensing strategy prohibits the formation of a social
media licensing market, and how and why Fox News’ uses of modified versions of the
Photograph—one being a meme, and one being a mashup—on Facebook pages were highly
transformative, non-substitutional, and caused no market harm.
Georeen Tanner
Fox News Network, LLC
1211 Avenue of the Americas
New York, New York 10036
Ms. Tanner will testify concerning her background and experience; the content,
maintenance, and purposes of the Facebook page associated with the Justice with Judge Jeanine
Fox News Channel Program; and her post of an image to that Facebook page on September 11,
2013.
Amre Youssef
North Jersey Media Group Inc.
1 Garret Mountain Plaza
Woodland Park, New Jersey 07424
Mr. Youssef will testify concerning NJMG’s licensing of the Photograph and NJMG’s
licensing of NJMG content.

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(ix)

Depositions.1

Stipulation Regarding Deposition Designations
As of now, the parties are providing only two sets of deposition designations: (1) Katy
Ricalde and (ii) Thomas E. Franklin.
All other anticipated witnesses (see supra Part viii) are either within the control of the
parties, or reside within the subpoena power of the Court. The parties stipulate and agree that,
should such a witness unexpectedly become unavailable, such unexpected unavailability would
constitute good cause to amend this joint pre-trial statement to include deposition designations
for that witness.
Katy Ricalde
NJMG: If Fox News refuses to produce Ricalde as a live witness, NJMG intends to rely
upon the following portions of the depositions of Katy Ricalde taken on October 22, 2015.
Rule 30(b)(6)
5:21-6:5
6:18-20
7:21-9:15
14:6-25
15:7-18
17:21-18:7
20:3-25
24:18-24
25:14-26:11
27:2-24
28:14-29:9
30:24-31:24
33:24-36:12
38:1-40:23
41:11-25
44:18-45:12
1

If the Court would find it useful, Fox News is prepared to submit copies of excerpts of the
transcripts that are to be read to the jury, with each parties’ designations highlighted in a different
color.
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45:23-48:22
49:24:50:5
51:4-52:10
53:9-54:10
55:18-56:13
Rule 30(b)(1)
5:21-7:2
8:5-21
9:6-15
9:24-10:7
10:17-13:13
14:8-18-10
21:2-23:23
24:5-19
25:5-26:18
27:2-17
28:5-10
28:20-29:23
30:15-25
31:9-32:8
38:1-38:22
39:15-21
40:6-42:19
43:4-44:2
49:18-53:13
55:3-13
56:9-557:19
61:23-62:14
67:9-17
688:69:15
70:17-71:11
74:5-19
75:7-76:19
78:4-82:3
83:10-25
84:13-86:25
87:9-87:23
88:4-89:15
90:1-22
91:12-22
94:18-95:18
97:2-98:17
98:21-99:1
100:20-101:17

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103:1-13
104:4-105:15
106:2-108:8
108:21-111:6
112:22-114:8
115:8-20
116:11-118:18
119-25
120:18-25
121:7-16
123:1-126:9
126:1-24
127:15-17
132:3-16
134:19-135:2
135:11-20
136:24-137:14
138:11-139:12
141:7-143:19
143:24-146:5
147:13-148:6
148:17-24
149:19-152:11
152:21-23
153:5-20
157:10-16
160:3-21
161:3-25
164:4-15
165:5-10
166:3-168:25
170:21-172:22
173:2-21
175:23-179:25
180:8-24
182:19-183:6
183:18-185:17
186:7-12
187:5-189:4
189:22-13
190:25-194:15
196:1-197:9
199:9-201:11
204:16-206:14
207:10-208:7
209:13-212:20

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212:24-213:7
213:23-214:21
217:5-25
218:23-220:9
220:21-25
221:14-222:4
222:22-223:10
223:15-224:5
225:7-14
225:22-226:10
NJMG objects to Fox News relying upon the deposition testimony of Ricalde except to
the extent necessary to round out the testimony of Ricalde that NJMG actually reads to the jury
on the ground that Fox News is causing Ricalde to be “unavailable” for trial, unless it wants her
to testify live. NJMG has offered to stipulate that Ricalde will not testify live at trial under any
circumstances, and Fox News has refused to so stipulate. Apparently, Fox News wants to assess
the effectiveness of NJMG’s reading of Ricalde’s deposition and then decide whether to call her
live. Fed R. Civ. P. 32 (a)(4) does not give Fox News that option.
Fox News: Ricalde, who lives and works in Washington, D.C., is an unavailable witness,
and Fox News intends to rely on her deposition transcript in lieu of live testimony. See Fed. R.
Civ. P. 32(a)(4) (either party may use deposition transcript of witness who is unavailable because
she is “more than 100 miles from the place of hearing or trial” and her absence was not
“procured by the party offering the deposition”). Fox News does not intend to call Ms. Ricalde
at trial; the suggestion that Fox News will make an on-the-fly decision at trial as to whether to
call Ms. Ricalde is baseless. See supra Part viii (not listing Ms. Ricalde as a witness that Fox
News intends to call at trial). Fox News will not waive its right to amend this joint pre-trial
statement for “good cause,” which is what NJMG seeks by asking Fox News to stipulate that it
will not call Ms. Ricalde to testify live at trial “under any circumstances.”

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As for the designations: Fox News objects generally to NJMG’s designations of Ms.
Ricalde’s transcript as overbroad. NJMG has designated large swaths of the transcripts that are
patently irrelevant and inadmissible, including a substantial amount of attorney colloquies and
questions for which counsel never obtained an answer. Reading this testimony to the jury would
take an unnecessarily long time. Unless and until NJMG provides Fox News with its more
realistic deposition designations, Fox News will rely on the objections it stated during the
deposition of Ms. Ricalde.
As for Fox News’ designations of the transcript of Ms. Ricalde’s testimony: They are as
follows:
30(b)(6)
10:4 – 12:11
12:24 – 13:3
14:6 – 14:15
15:7 – 15:15
16:7 – 16:13
17:19 – 18:2
22:14 – 22:17
22:20 – 22:22
23:5 – 23:8
23:17 – 24:2
24:6 – 24:11
25:14 – 26:2
30:24 – 31:6
30:10 – 32:1
32:12 – 32:23
34:6 – 34:9
34:13 – 34:20
35:23 – 36:3
38:15 – 39:5
39:9 – 40:4
46:9 – 47:13
30(b)(1)
9:17 – 10:15
10:24 – 11:9

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11:20 – 12:4
12:14 – 13:3
13:7
13:19 – 14:3
15:22 – 16:3
16:10 – 17:3
17:17 – 19:19
20:2 – 20:11
36:12 – 36:18
37:1 – 37:20
37:22
41:20 – 41:23
48:15 – 48:21
52:24 – 53:6
53:8 – 53:9
53:11 – 54:2
56:12 – 56:15
56:19
67:24 – 68:15
90:12 – 90:22
96:2 – 97:8
97:25 – 98:3
98:11 – 99:1
99:11 – 99:19
102:1 – 102:13
103:12 – 103:15
103:18 – 103:19
103:21 – 103:25
106:21 – 107:14
109:4 – 109:14
113:11 – 113:14
114:8 – 114:15
114:24 – 115:10
115:16 – 115:25
119:3 – 119:12
120:17 – 121:5
122:1 – 121:11
123:5 – 124:10
124:17 – 125:4
134:11 – 134:20
135:11 – 135:15
136:20 – 137:2
137:6 – 137:14
138:13 – 138:15
141:12 – 141:23
142:24 – 143:1

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143:6 – 143:19
143:25 – 144:22
146:4 – 146:7
147:2 – 147:6
180:8 – 180:19
181:21 – 182:3
182:6
190:22 – 191:6
198:9 – 198:14
198:21 – 199:5
204:15 – 204:20
205:10 – 205:25
206:10 – 206:15
206:20 – 207:7
209:4 – 209:18
213:4 – 213:21
Fox News: Fox News intends to rely upon the following portions of the deposition of
Tom Franklin taken on July 10, 2014, if Mr. Franklin does not testify live at trial.
8:4 – 8:6
9:16 – 10:4
11:6 – 11:16
13:2 – 13:23
18:7 – 18:14
19:10 – 20:8
21:10 – 21:19
21:25 – 22:6
22:16 – 22:20
22:23 – 23:6
23:17 – 24:19
25:7 – 26:11
26:19 – 27:11
27:14 – 27:18
29:10 – 31:8
31:24–32:2
32:5
39:20 – 39:24
40:20 – 41:2
41:20 – 42:8
42:19 – 42:25
43:9 – 43:16
43:20 – 44:3
45:6 – 45:19
48:11 – 48:19

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57:13 – 57:21
58:2 – 58:5
58:11 – 59:20
59:22 – 60:12
60:14
61:7 – 61:21
63:5 – 64:10
64:12 – 64:19
64:21 – 65:13
65:15 – 65:17
78:18 – 78:24
79:20 – 80:11
81:10 – 82:7
82:11 – 83:2
83:12 – 84:3
84:9 – 84:11
84:16 – 84:19
84:23 – 84:25
85:4 – 85:14
86:21 – 86:23
87:9 – 87:12
88:11 – 89:5
89:13 – 89:25
90:6 – 90:8
90:11
90:16 – 90:18
90:20
90:24 – 91:3
91:5 – 91:21
92:13 – 93:11
96:3 – 96:25
97:18 – 98:12
98:15 – 98:17
98:19 – 98:20
98:22 – 98:25
100:3 – 100:12
NJMG: NJMG reserves it right to object to any of the testimony that Fox News proposes
to read and counter-designates the following passages.
8:7-16
14:5-15:7
20:9-21:9
21:20-24
22:7-15

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23:12-16
24:20-25:6
36:5-25
39:25-40:16
44:17-45:5
46:5-47:20
58:6-10
60:15-23
61:2-6
61:22-63:4
65:19-66:23
76:10-24
78:25-79:6
83:3-11
91:22-92:12
(x)

Exhibits.

NJMG’s Exhibits: NJMG intends to offer into evidence the exhibits listed on Schedule A
and intends to offer the exhibits listed on Schedule B if the need arises. The listing of any
exhibit is not intended to be an admission that any exhibit would be admissible if offered by Fox
News. Per the Court’s Individual Practices, Fox News has identified on Schedule A and
Schedule B whether it agrees that the exhibits are authentic and/or admissible.
Fox News’ Exhibits: Fox News intends to offer into evidence the exhibits listed on
Schedule C and intends to offer the exhibits listed on Schedule D if the need arises. Per the
Court’s Individual Practices, NJMG has identified on Schedule C and Schedule D whether it
agrees that the exhibits are authentic and/or admissible.
(xi)

Damages.

NJMG Statement
NJMG seeks statutory damages pursuant to 17 U.S.C. § 504(c). Statutory damages
pursuant to this section are awarded in the discretion of the trier of fact, in this case the jury, and
are not subject to calculation or computation except within the statutory limits.

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 Case 1:13-cv-07153-ER Document 126 Filed 12/21/15 Page 21 of 23

In this case, that range of statutory damages is (i) between $750 and $150,000 for Fox
News’ infringement of the Photograph in the action North Jersey Media Group Inc. v. Fox News
Network, LLC, 13 Civ. 7153, and (ii) between $750 and $150,000 for Fox News’ infringement
of the Photograph in the action North Jersey Media Group Inc. v. Fox News Network, LLC, 14
Civ. 7630. Thus, the total amount of damages that the jury may award against Fox News in total
ranges between $1,500 and $300,000. The facts of this case should not allow Fox News to reach
the jury on an “innocent infringer” defense pursuant to 17 U.S.C. § 504(c). The fact that these
two action are being tried together does not impact NJMG’s right to recover in each action.
The amount that the jury should award within these ranges depends in part on whether
the infringements of Fox News were “willful” within the meaning of the statute, $30,000 for
each action being the maximum if the infringement in each action was not willful. This state of
mind of “willfulness” includes states of mind known as “recklessness: and “willful blindness.”
Fox News Statement
Fox News is seeking no damages in connection with the claims scheduled for trial on
January 11, 2015. However, it reserves the right to seek to recover its reasonable costs,
including attorneys’ fees, at the appropriate time. Similarly, Jeanine Pirro—a “prevailing party”
in Case No. 13-cv-7153, as NJMG voluntarily dismissed its claims against her, with prejudice—
reserves her right to seek her reasonable costs, including attorneys’ fees, at the appropriate time.
As for NJMG’s damages, Fox News disputes NJMG’s statement in three regards. First,
Fox News disputes liability, and on that basis disputes that NJMG is entitled to statutory
damages at all. Second, under 17 U.S.C. § 504, NJMG is entitled to a single award of statutory
damages for the “all infringements” of the “one work” at issue in this consolidated action.
NJMG is not entitled to an award of statutory damages for each of the two alleged infringements,

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as it states above. This will be the subject of a motion in limine that Fox News intends to make
in advance of trial. Third and lastly, NJMG misstates the range of statutory damages available
under 17 U.S.C. § 504. The range of statutory damages for infringement is, generally, $750 to
$30,000. See 17 U.S.C. § 504(c)(1). That award can be increased to $150,000 if the jury finds
that the infringement was “committed willfully.” See 17 U.S.C. § 504(c)(2). It can also be
decreased to $200 if the jury finds that the Fox News “was not aware and had no reason to
believe that his or her acts constituted an infringement of copyright”; which is commonly
referred to as “innocent infringement.” Id. Thus, the overall range of available statutory
damages is $200 to $150,000, not $1,500 to $300,000 as NJMG sets forth above.
(xii)

Verdict.

The parties do not consent to less than a unanimous verdict.
Dated: New York, New York
December 18, 2015
DUNNEGAN & SCILEPPI LLC

By_s/William Dunnegan___________
William Dunnegan (WD0415)
wd@dunnegan.com
Richard Weiss (RW4039)
rw@dunnegan.com
Attorneys for Plaintiff
North Jersey Media Group Inc.
350 Fifth Avenue
New York, New York 10118
(212) 332-8300

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 Case 1:13-cv-07153-ER Document 126 Filed 12/21/15 Page 23 of 23

HOGAN LOVELLS US LLP

By

/s/ Dori Ann Hanswirth
Dori Ann Hanswirth
dori.hanswirth@hoganlovells.com
Nathaniel Boyer
nathaniel.boyer@hoganlovells.com
Benjamin Fleming
benjamin.fleming@hoganlovells.com
Patsy Wilson
patsy.wilson@hoganlovells.com
Attorneys for Defendant
Fox News Network, LLC
875 Third Avenue
New York, New York 10022
(212) 918-3000

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