Brad Pitt photo puts Fox News on 'fair use' hot seat

By Eriq Gardner

EXCLUSIVE: How many times will Rupert Murdoch's gripes about "fair use" come back to bite him in the rear?

Fox News is now being sued for showing unauthorized video of Brad Pitt failing to control his motorcycle as he drives slowly in Hollywood. The footage aired during Bill O'Reilly's show, where he used it to criticize paparazzi.

The owner of the footage, Media2Air, says it licensed use of the video to various media outlets but Fox News just took it "as part of its continuing coverage of the Pitt family."

Fox News claimed "fair use." 

As you'll recall, News Corp. chairman Rupert Murdoch has been vocal in his belief that courts would eventually bar "fair use." The comments have made their way into Media2Air's new lawsuit against Fox News.

Media2Air says it licensed its Brad Pitt motorcycle video to various news outlets. Permission was granted under strict time and platform guidelines.

Fox allegedly downloaded the clip off of TMZ and broadcast it on October 27, 2009.

The plaintiff says it immediately contacted Fox, which allegedly ignored the demand and instead used the footage again two days later. The following day, a cease-and-desist letter was sent. Another follow-up letter was sent in February.

According to the complaint, Fox attorney Carlotta Cassidy then called Media2Air and said that use of the video was proper, citing the "newsworthy rule" (an aspect of fair use). Nevertheless, Cassidy allegedly blamed a Google cache for the continued appearance of the footage on the Fox News website, and Media2Air says it believed the video would soon be taken down.

That allegedly didn't happen. The plaintiff argues that the offending image is still on Fox's website and is being used "with absolutely no commentary or critical purpose." (Yes, we're posting the photos here too, but with a purpose.)

Media2Air objects to Fox News' characterization that this was a fair use. "Fox News is wrong," the complaint puts it bluntly.

As proof, the plaintiff trots out testimony by — you guessed it — Rupert Murdoch.