IP Law Daily, COPYRIGHT—2d Cir.: Second Circuit revives copyright claims over embedded video use, (Apr 24, 2026)

By George Basharis, J.D.

Full-video republication and recognizable screenshots may support infringement, while platform terms can bar claims for embedded content.

Republishing an entire video within a news article can, at least at the pleading stage, function as a market substitute that undermines a fair-use defense, the U.S. Court of Appeals for the Second Circuit held, reviving copyright claims against a media company that embedded and displayed a videographer’s work without permission. The appellate court concluded that the alleged copying of a 42-second video depicting Michael Jordan intervening in a fight could not be deemed fair use on the pleadings alone. The court also rejected dismissal of claims based on the use of screenshots from that video and a separate interview clip, finding that recognizable still images do not qualify as de minimis copying. At the same time, it affirmed dismissal of claims tied to a separate embedded interview video, concluding that the platform’s terms of service granted a license covering the challenged use (Richardson v. Townsquare Media, Inc., No. 25-291-cv (2d Cir. Apr. 23, 2026)).

Background. The dispute arises from the work of Delray Richardson, a professional videographer who recorded and published a short video in 2015 showing Michael Jordan breaking up a physical altercation. The footage drew renewed attention years later when a third-party social media account reposted it and speculated about the identity of one of the individuals involved. Townsquare Media, Inc., which operates the hip-hop news site XXL, published an article covering that online exchange. The article embedded the social media post, which included the full video, and featured a still image from the footage in its headline.

Richardson also recorded an interview with rapper Melle Mel in which the artist criticized Eminem. That video was posted to YouTube by a third party, and Townsquare later embedded it in two separate articles, each accompanied by a screenshot from the interview.

Richardson sued, alleging that the republication of both videos and the use of screenshots infringed his copyrights. The district court granted judgment on the pleadings to Townsquare, concluding that the Jordan video use was fair, that the screenshots were de minimis, and that the YouTube embedding was licensed.

The Second Circuit agreed only in part. It vacated the dismissal as to the Jordan video and all screenshot-based claims but affirmed dismissal of claims tied to the embedded YouTube interview. The court emphasized that fair use is a context-sensitive inquiry that rarely can be resolved definitively at the pleading stage unless the factors decisively favor the defendant.

Transformative purpose. The Second Circuit focused heavily on the first statutory factor, which examines the purpose and character of the use. The district court had concluded that the article was transformative because it reported on the video itself and added context regarding speculation about a third party’s involvement.

The appellate panel described that conclusion as overstated. While acknowledging that the article included some commentary, it found that the presentation suggested the video remained the central draw rather than merely illustrative. The headline emphasized the video itself, and much of the article described what viewers could observe directly from the footage. The Second Circuit noted that limited commentary does not automatically render a use transformative, particularly where the original work is reproduced without alteration and minimally integrated into the surrounding reporting. It characterized the question of “transformativeness” as “a closer call” than the district court had recognized and declined to find that the factor clearly favored dismissal at the pleading stage.

Commercial nature. The Second Circuit also addressed the commercial nature of the use, which the district court had not fully considered. Townsquare operates a for-profit publication and displayed advertising alongside the embedded content. Although the panel acknowledged that commercial news organizations routinely rely on advertising and that this fact alone is not dispositive, it concluded that the commercial nature of the use could not be ignored at the pleading stage. Taken together, the court of appeals described the first factor as, at best, neutral.

Nature of the work. The second factor, which considers the nature of the copyrighted work, weighed in favor of fair use but carried limited weight. The appellate court agreed that the Jordan video was largely factual and depicted a newsworthy event, with minimal creative choices involved. Such works fall closer to the informational end of the spectrum, making them more amenable to fair use.

Full reproduction. The third factor, which examines the amount and substantiality of the portion used, weighed against dismissal. Townsquare conceded that it republished the entire video. The Second Circuit rejected the argument that doing so was necessary simply because the video appeared in an embedded social media post. It identified several alternative ways the article could have conveyed the same information without reproducing the full video, including summarizing the post, using excerpts, or linking to the original source.

The court also rejected the argument that full reproduction was required for accuracy. It noted that the article did not rely on aspects of the video that could only be understood through full playback, particularly because the disputed identification involved an individual not visible in the footage. The court concluded that, at the pleading stage, the wholesale use of the video could not be deemed reasonable as a matter of law.

Market substitution risk. The fourth factor, which considers the effect on the potential market for the copyrighted work, proved decisive in the Second Circuit’s analysis. Townsquare reproduced the entire video; as a result, the panel found that it could serve as a substitute for the original, allowing users to consume the content without seeking it from the copyright holder.

That potential displacement of demand weighed strongly against a fair-use determination at the pleading stage. The court emphasized that such substitution concerns are particularly significant where the copied work is short and fully reproduced, making it easily consumable in its entirety within the secondary use.

Weighing the factors together, the panel concluded that they did not decisively favor fair use. Because the analysis remained fact-dependent and the complaint plausibly alleged infringement, dismissal was improper.

Screenshots and embedded video. The Second Circuit also addressed the district court’s conclusion that the use of screenshots from the videos was too minimal to be actionable. The de minimis doctrine typically applies when copied material is so small or indistinct that it is not recognizable in the secondary work. However, the screenshots used in this case were clearly derived from the original videos and remained fully recognizable. Because the copied images were identifiable and directly tied to the original works, the doctrine did not apply. Therefore, the court of appeals reinstated the screenshot-based claims.

The Second Circuit reached a different conclusion with respect to the embedded Melle Mel video. That video had been posted on YouTube, and the platform’s terms of service grant users a license to access and display content through its embedding functionality. The court held that the license unambiguously covered Townsquare’s use of the video, barring the infringement claim. It affirmed dismissal of that portion of the case because the license provided a complete defense.

In granting judgment on the pleadings, the district court had emphasized that the Jordan video was the subject of the news article and that displaying it helped illustrate the story. It also found that the video depicted factual, newsworthy events and that the screenshots were minimal uses. The Second Circuit did not dispute those general principles but concluded that they were applied too broadly at the pleading stage.

The Case is No. 25-291-cv.

Judge: Lynch, G.

Attorneys: Craig B. Sanders (Sanders Law Group) for Delray Richardson. Abigail B. Everdell (Davis Wright Tremaine LLP) for Townsquare Media, Inc.

Companies: Townsquare Media, Inc.

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