IP Law Daily, COPYRIGHT—S.D.N.Y.: Daily Mail and others’ embedding of viral tweet satisfied fair use factors, (Mar 2, 2026)

By Robert Margolis, J.D.

The court found plaintiff’s failure to register tweet before filing initial complaint could not be cured by registering it before filing the amended complaint.

A federal district court in New York has granted a motion to dismiss brought by defendants The Daily Mail, The Daily Beast Company LLC, Independent Digital News, and various other individuals and entities involved in publishing three news articles, finding that their articles about a tweet by Sonya Shaykhoun and the viral reaction to that tweet did not violate Shaykhoun’s copyright in her tweet by embedding and reproducing it within the articles. The court found (1) the defendants’ use of the tweet met all four fair use factors, providing a complete defense to Shaykhoun’s claim, and (2) her failure to register the tweet before filing her initial complaint was fatal to her claim. The court dismissed her copyright claim with prejudice. It also dismissed her claim that the defendants violated her First Amendment rights under color of state law, finding that the defendants are purely private actors and the fact that they previously convinced a New York State court judge to invoke the state’s Anti-SLAPP statute against her did not constitute acting in concert with a state actor. The First Amendment claim was dismissed without prejudice (Shaykhoun v. The Daily Mail, No. 1:24-cv-09978-ALC (S.D.N.Y. Feb. 26, 2026)).

Viral tweet. On May 17, 2023, Shaykhoun, an attorney in New York City, posted a tweet on X.com complaining about an allegedly unlicensed food vendor in a New York City park. The tweet described how Shaykhoun asked the vendor “where’s your permit” and when the woman “got belligerent and started filming me and refused to show me her permit,” Shaykhoun called 911. The tweet further reported that the police never came, and closed by imploring people to call the police when “you see ppl defacing [parks] by setting up illegal stands …” The tweet was viewed nearly 7 million times, sparking significant commentary both positive and negative. She made $170.97 from the tweet through X.com’s monetization program before she decided to change her account from public to private “to protect her safety,” therefore halting any further earnings.

News articles. Shortly after Shaykhoun published her tweet, The Daily Beast, The Independent, and The Daily Mail, each published articles about it, with headlines “Lawyer Roasted for Calling 911 on ‘Unlicensed Food Vendor in NYC Park” (The Daily Beast), “NYC lawyer roasted on Twitter for reporting illegal food stand rails against city’s ‘rapid deterioration’” (The Independent), and New York City lawyer is roasted for calling 911 on two female vendors selling food in Upper West Side park without a permit: ‘Get a life, Karen” (the Daily Mail). The Daily Mail embedded the entire tweet, while The Daily Beast and the Independent did not, having only a portion of it visible. Each article generally discusses the controversy generated by the tweet, includes a reproduction of some or all of it, discusses users’ responses to it (positive and negative), and adds Shaykhoun’s responses and defense of the tweet. She contends the articles caused her to suffer cyberbullying and to privatize her X.com account, costing her the ability to monetize her tweets.

Copyright registration. Plaintiff brought a copyright infringement claim, alleging that the defendants’ reproduction of the tweet in their articles infringed her copyright. The court found her claim precluded because she had not registered her tweet prior to filing her initial complaint in the lawsuit, which the Copyright Act requires. 17 U.S.C. § 411(a). The court rejected her argument that she could cure that defect by registering the tweet prior to filing an amended complaint (which she had done). While the failure to plead registration before filing suit can be cured if the plaintiff in fact had registered before filing suit and did not plead that fact, the failure to register itself cannot be cured in an amended complaint. As the court pointed out, such an outcome would make meaningless Section 411(a)’s registration precondition to filing a lawsuit, since a plaintiff could always correct the omission by registering before amending a complaint.

Fair use. Though failure to register alone sufficed to dismiss the copyright claim, the court also found that the defendants satisfied all four of the fair use factors, thus providing a complete defense. The first factor, the “purpose and character of the use,” is satisfied where the use is “transformative.” The use of a copyrighted work in a news article about the work itself usually constitutes a transformative use, and the court found no reason to deviate from that general rule here. The defendants’ use of the tweet in their articles was transformed into a news report about the viral tweet and the controversy that ensued. While Shaykhoun’s purpose was to share her first-hand experience, and encourage the public to report unlicensed food stands, the defendants’ purpose was to report about the public response to her tweet. This factor supported fair use.

The second factor, “nature of the work,” also favored fair use, based on precedent holding the publishing of a Tweet online supports fair use, the court held. As to the third factor, “portion of the work used,” the fact that one article reproduced the tweet in its entirety did not weigh against fair use, because of the necessity to use the whole work to provide a complete description of the controversy surrounding the tweet. Finally, there was no “potential effect of the use on the market or value” of the tweet, because news articles about tweets do not compete with tweets themselves in the marketplace. Assuming there were people interested in purchasing or licensing the tweet, a news article about the tweet would not be an adequate substitute. The loss of revenue from privatizing the account is not the type of monetary effect that this factor considers. Therefore, this factor also supported fair use.

First Amendment. Shaykhoun initially filed her lawsuit in New York Supreme Court. The judge sua sponte informed her of New York’s anti-SLAPP law and explained she would be on the hook for paying “sizable mandatory attorneys’ fees” to the defendants if they succeeded in dismissing the lawsuit. She subsequently voluntarily dismissed the lawsuit, then claimed in her federal lawsuit that the defendants acted in concert with the judge to violate her free speech rights. But as the court pointed out, the defendants’ invocation of a state law in a state court lawsuit does not constitute joint activity with a judge who agrees with defendants as to the applicability of that law. And there was no violation of her right to petition, because she could and did file suit both in state and federal court. The right to petition is not the right to a favorable outcome.

The case is No. 1:24-cv-09978-ALC

Judge: Carter, A.

Companies: The Daily Mail; Dailmail.com; Daily Mail and General Trust PLC; The Daily Beast Company LLC; IAC Inc.; Independent Digital News and Media Limited

Cases: Copyright TechnologyInternet NewYorkNews