IP Law Daily, COPYRIGHT—S.D.N.Y.: Lawsuit over X video embedded on news site may proceed, (Aug 12, 2025)
Law Firms Mentioned:Davis Wright Tremaine LLP | Sanders Law Group
Organizations Mentioned:Davis Wright Tremaine, LLP | Sanders Law Firm, LLC | Townsquare Media, Inc. | U.S. Copyright Office
By Steven Melendez
A media company failed to prove it had a valid sublicense to the video from the former Twitter, a court ruled on a motion to dismiss.
A judge in the Manhattan federal court refused to dismiss a copyright infringement lawsuit over Townsquare Media, Inc.'s embedding of a copyrighted video hosted on X, saying Townsquare failed to show it had a sublicense to the video. The judge did dismiss elements of the complaint related to separate use of a screenshot of the video in an article, calling it de minimis use (Ong v. Townsquare Media, Inc., No. 1:24-cv-03877-RA (S.D.N.Y. Aug. 8, 2025)).
Journalist Michelle Ong recorded a 63 second video of an interaction between Nevada law enforcement and a group of climate protesters who had blocked the road to the Burning Man festival. She published the video, which shows officers driving through a protester barricade and detaining several people at the scene, in a post on X on August 27, 2023, according to the ruling in the case.
Townsquare published an article on August 29, 2023, entitled “Police Drive Through Climate Protester’s Barricade." The article, which appeared on 97x.com, a Townsquare-owned site affiliated with a Midwestern radio station, included a screenshot of the video and an embedding of Ong's X post that included the video.
Ong never gave Townsquare permission to use the material, and the company didn't pay her for its use. On November 14, 2023, she registered the video with the U.S. Copyright Office, and on May 20, 2024, she filed suit against Townsquare. Townsquare filed its motion to dismiss on September 23, 2024.
Video licensing issues. Townsquare argued that Ong gave X a license to use the video when she posted it to that platform, formerly known as Twitter. And, Townsquare argued, it used the video under a sublicense from X. The company cited language from X's terms of service that refers to users granting X a license to use and sublicense material posted to the site.
"By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods now known or later developed (for clarity, these rights include, for example, curating, transforming, and translating)," the quoted section of the terms read in part. "This license authorizes us to make your Content available to the rest of the world and to let others do the same."
But, the court found, the terms don't establish that X in fact granted a sublicense to Townsquare. The company also cited a separate X developer agreement that it says establish the sublicense, but the court found that the record doesn't currently show that Townsquare is party to that agreement, meaning the claim can't be dismissed at this stage.
"Although Townsquare could have—and may still be able to—attach proof of its purported sublicense agreement to its answer and seek a judgment on the pleadings," according to the ruling, "it has not yet done so."
The screenshot. Townsquare argued its use of the screenshot of the video was de minimis copying and fair use.
Copyright infringement requires "substantial similarity" between the alleging infringing material and the copyrighted material, and courts have held that requires that more than a "de minimis" amount is copied.
Citing precedent involving video screenshots, the court agreed the screenshot was no more than de minimis copying, granting the motion to dismiss with respect to the screenshot.
"As Townsquare points out, and Ong does not dispute, the single frame used in the Screenshot constitutes less than one one-thousandth of the total number of frames in the sixty-three-second video," according to the ruling.
The Case is No. 1:24-cv-03877-RA.
Judge: Abrams, R.
Attorneys: Jaymie Brooke Sabilia-Heffert (Sanders Law Group) for Michelle Ong. Abigail Bain Everdell (Davis Wright Tremaine LLP) for Townsquare Media, Inc.
Companies: Townsquare Media, Inc.
Cases: Copyright NewYorkNews