IP Law Daily, COPYRIGHT—S.D.N.Y.: Smut film screencap is protected as fair use, (Feb 5, 2026)

By Matthew Hersh, J.D.

The social media user who posted the screencap used it as a piece of a collage intended to criticize a cryptocurrency firm.

A social media user who posted to social media a screenshot of a pornographic video in an apparent attempt to caricature a cryptocurrency firm and its executive made a fair use of the underlying video because he used it for a transformative purpose and used only a small fragment of the work, the federal court for Manhattan has held. The court, addressing a case at the crossroads of illicit pornography, cryptocurrency, and the company formerly known as Twitter but now rebranded as X, also found that the social media post would not have any impact on the natural market for the video (MCM Group 22 LLC v. Perry, No. 1:22-cv-06157-GBD (S.D.N.Y. Feb. 3, 2026)).

The lawsuit arises out of decidedly unfortunate circumstances. A videographer, unrelated to the present action, persuaded various victims to appear in pornographic videos by fraudulently representing that the videos would never be posted online or released in the United States. After the videographer was convicted of sex trafficking, the court overseeing the criminal proceedings awarded ownership of each of the videos, respectively, to the victim who had been exploited by that video. One of those victims, referred to in this case only as Jane Doe, assigned her rights to an LLC for the purpose of using takedown requests and litigation in order to prevent the video’s further distribution.

The LLC took aim in this case at Lyndon Perry, a social media user who allegedly posts under the pseudonyms “LPORIGINALG” and “I,HYPOCRITE.” The copyright infringement lawsuit claims that Perry posted to X a non-nude screencap from the video superimposed over a Forbes article about a cryptocurrency firm. (Although the purpose of the X post was not made clear in the record, “one could surmise,” in the words of the court, that the purpose was to disparage the company and its up-and-coming female executive for “perhaps employing someone who had appeared in a pornographic film).

The X user moved to dismiss the complaint on fair use grounds, leading to this opinion.

Transformative use. The court found that fair use was established on the face of complaint. Central to its determination was the fact that the use of the video was transformative under the first fair use factor. The video was a pornographic film with the express purpose of displaying explicit sexual content, the court noted. By contrast, the court observed, the X posting did not contain any sexually explicit content and was rather “framed as a commentary” on the cryptocurrency firm. Moreover, the court noted, the X post used the video not on its own but rather as part of a broader collage apparently intended to further his commentary. “The reproduction of a copyrighted image in a larger collage is transformative,” the court noted, “where the copyrighted work is used as a raw material in furtherance of distinct creative or communicative objectives.”

Effect on the market. The fourth factor also tilted in favor of fair use, the court found—although this finding required a somewhat more complex analysis. Because the single still did not contain any sexually explicit imagery, the court noted, “a person in the market for sexually explicit, pornographic film would not turn to the [X post].” The LLC behind the lawsuit acknowledged this but also argued that this case was different because it didn’t want to exploit the work; rather, it wanted to control and suppress that exploitation. But there was no on-point precedent supporting such a notion, the court found. The closest case cited by the LLC, Clean Flicks of Colorado v. Soderberg, 433 F.Supp.2d 1236 (D. Colo.), did state that a copyright holder had an intrinsic “right to control the content of the copyrighted work” and therefore gets to decide “what audience [it] wants to reach.” But that case involved “substantial and non-transformative copying,” the court noted. Its reasoning would therefore have no applicability here.

Other factors. None of the other usual fair use considerations altered the outcome of the court’s analysis. The X tweet may have been commercial in the sense that it was intended to drive contributions to the poster’s ongoing activities, but that did not matter here because a substantially transformative use allows a court “to discount the secondary commercial nature of the use.” The second factor, evaluating the nature of the work, was neutral because its ostensible creativity was outweighed by the fact that it was widely disseminated. As to the third factor, evaluating amount and substantiality of the portion used, the court found, this weighed in favor of fair use because the X post “reproduced a single frame of a forty-six minute video.”

The Case is No. 1:22-cv-06157-GBD.

Judge: Daniels, G.

Attorneys: Erik James Dykema (Dykema Gossett PLLC) for MCM Group 22 LLC. Jay Marshall Wolman (Randazza Legal Group PLLC) for Lyndon Perry.

Companies: MCM Group 22 LLC

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