IP Law Daily, COPYRIGHT—S.D.N.Y.: Circuit split widens over so-called ‘server test’ in case over use of videos, (Dec 11, 2025)

By Matthew Hersh, J.D.

Another New York court weighs in against the Ninth Circuit doctrine.

A news website that embedded two videos taken by an independent videographer could not escape a copyright infringement lawsuit on the grounds that the purloined videos were not hosted on its own website, the federal court in Manhattan has held. But the court, while joining a wide range of other New York courts that have rejected the Ninth Circuit’s “server test,” nonetheless found that the use of one of the videos was protected by the doctrine of fair use because it consisted of commentary on the video by a prominent conservative news anchor (Level 12 Productions, LLC v. Mediaite, LLC, No. 1:24-cv-00006-JAV (S.D.N.Y. Dec. 9, 2025)).

The lawsuit was brought by Brendan Gutenschwager, an independent reporter and videographer (and not infrequent federal litigant) who operates the website Level 12 Productions. The videographer’s lawsuit takes on Mediaite, an online news service that focuses on politics and media. The videographer contends that Mediaite embedded on its website two videos that he had posted to his personal X account. One of these videos, the lawsuit describes, depicts a rally against migrant shelters that took place outside of Gracie Mansion in New York. The other video records celebrities Chrissy Teigen and John Legend walking through a protest to the White House Correspondents’ Dinner in Washington DC.

Both parties moved for summary judgment, leading to this opinion.

Server test. The court first rejected Mediaite’s argument based on the so-called “server test.” The Copyright Act defines the term “display” as “to show a copy of [a work], either directly or by means of a film, slide, television image, or any other device or process.” In this case, Mediate did not host the two videos directly on its website—rather, it made them visible to its viewers by embedded a live link directly to the videographer’s X posts. Under Ninth Circuit doctrine, the court noted, Mediate could not have infringed upon the videographer’s exclusive right to display his works because it did not show a “copy” of that work, but rather the videographer’s own original copy. But while the Second Circuit has never weighed in on the Ninth Circuit rule, district courts in New York have overwhelmingly rejected it—including, perhaps most notably, in an influential opinion by Judge Rakoff in Nicklen v. Sinclair Broadcast Group. Judge Rakoff had it right, the court found. The server test defense would therefore fail.

Fair use. But while Mediaite would not prevail on the server test doctrine, it came away with a partial victory on the issue of fair use. The analysis of both videos was driven almost exclusively by the question of whether Mediaite made a transformative use of the works—but the outcome was different for each work.

Mediaite did not make a fair use of the Gracie Mansion video, the court found, because it did not meaningfully comment on the video itself. Rather, the court noted, Mediate simply used the entire video for the same purpose that the videographer did—to cover the rally itself. To be sure, the court noted, Mediaite did add a small amount of commentary about the video. But the mere addition of some “token commentary,” the court emphasized, “does not transform the use of a copyrighted work.” Rather, the court concluded, Mediaite “simply repackaged [and] republished [the video] as an illustrative aid to depict what had happened at the rally.” There was nothing transformative about that use.

But Mediate did make a fair use of the Correspondents Dinner award, the court found. Rather than embedding the original video itself, the court noted, Mediaite instead embedded a video from conservative commentator Megyn Kelly’s YouTube page—a video that itself included 35 seconds out of the total 59 seconds of the videographer’s work. What’s more, the court found, Mediaite’s story described Kelly as “reacting to [the] video which showed Teigen arriving at the dinner with her husband John Legend and three women who held the back of her dress.” (According to the article, the court described, “Kelly claimed Teigen’s flashy entrance was a picture of ‘everything wrong with the elitism... the self-importance, the aggrandizement of this fake, stupid event.’”) Thus, the court reasoned, the two celebrities’ entrance to the dinner was not the subject of the Mediaite article—“rather, Megyn Kelly’s reaction to [the video] was the subject of the story.” The use of the video was therefore protected as a fair use.

The Case is No. 1:24-cv-00006-JAV.

Judge: Vargas, J.

Attorneys: Joshua D. Vera (Sanders Law Group) for Level 12 Productions, LLC. Andrew Eisbrouch (Abrams Media) for Mediaite, LLC.

Companies: 12 Productions, LLC; Mediaite, LLC

Cases: Copyright NewYorkNews GCNNews