IP Law Daily, COPYRIGHT—S.D.N.Y.: Use of copyrighted image embedded in a video deemed fair use, (Sep 30, 2025)

By Deirdre Kennedy, J.D.

The manner in which the image was used was transformative of the original work.

A judge in the Manhattan federal court dismissed a copyright infringement lawsuit over Townsquare Media, Inc.'s use of a copyrighted photograph that was embedded in a video that it included in an article, finding that the manner in which Townsquare used the photo was transformative (Hames v. Townsquare Media, Inc., No. 1:24-cv-03875-ALC (S.D.N.Y. Sept. 29, 2025)).

William Hames is a professional photographer with specific expertise in the music industry. During his career, Hames took a photograph of George Lynch (the Photograph), guitarist for the American hard rock band Dokken. He intended the Photograph to be used commercially. Hames first published the Photograph in 2015 and registered the Photograph with the United States Copyright Office in 2019.

Townsquare Media, Inc. (Townsquare) is a media company which owns and operates a website called Loudwire. In 2023, Townsquare published a story on Loudwire (the Article) describing and quoting an interview from The Chuck Shute Podcast with Don Dokken (the Podcast) regarding his former bandmate George Lynch and the band’s career and struggles. Embedded at the end of the Article was a video clip from the Podcast (the Video) hosted on The Chuck Shute Podcast YouTube channel, which Townsquare also hyperlinked in the first paragraph of the Article. As a function of the embedding, before the Video was played, it displayed its title along with a preview image (the Thumbnail) which included a cropped version of the Photograph along with images of two other musicians and text about the Podcast. Hames provided neither Townsquare nor The Chuck Shute Podcast permission to use the Photograph.

Hames filed a complaint against Townsquare alleging copyright infringement. Townsquare moved to dismiss the complaint on two bases. First, that Hames failed to establish the substantial similarity necessary to show infringement because any infringement would be de minimis. Second, that any infringement was fair use.

De minimis infringement. In cases involving visual works, determining whether the “quantitative threshold” of substantial similarity has been crossed, supporting liability for copyright infringement, depends on the ‘‘observability of the copyrighted work in the allegedly infringing work.”

Townsquare argued that the alleged infringement was de minimis “because it was merely incidental to the embedding of the Video.” It asserts that the Photograph’s presence is equivalent to the appearance of copyrighted images on a wall briefly in the background of a documentary. According to Townsquare, this lack of intention, coupled with the fact that the Thumbnail “disappears as soon as a viewer begins playback,” weighs in favor of de minimis use. However, where a copyrighted image appears in the thumbnail of an embedded video, it “makes the image perpetually visible... before a user plays the video.” The court found it imprecise to equate this potentially long-lasting appearance of the Photograph with background images shown for only a few seconds at a time and therefore did not find the alleged infringement inactionable as de minimis use.

Fair use. Under the Copyright Act of 1976, fair use is a complete defense to a claim of copyright infringement. To determine whether use of a work is fair, courts consider several factors.

The first fair use factor calls for examination of “the purpose and character of the use,” including whether “the use merely supersedes the objects of the original creation, or instead” transforms it. Transformative uses tend to favor a fair use finding because a transformative use is one that communicates something new and different from the original. The Second Circuit has indicated that thumbnail images may inherently be transformative because their use is to provide a preview of the copyrighted content.

Townsquare used the thumbnail in its article but did not provide any specific analysis of the Photograph itself. This incidental use could be transformative, though, because the Podcast itself, which originally contained the Photograph, was the subject of Townsquare’s article. The court found that the presence of the Photograph was incidental to Townsquare’s embedding of the Video and therefore transformative of the Photograph’s original purpose to capture Lynch, thus favoring the finding of fair use.

The second fair use factor—the nature of the copyrighted work—accounts for the fact that some works are closer to the core of intended copyright protection than others. Creative works tend to be closer to that core than factual works. Although the creative nature of artistic images typically weighs in favor of the copyright holder, the analysis may change where the creative work of art is being used for a transformative purpose, because the transformative use is often not to exploit the work’s creative virtues. In this case, as Townsquare used the Photograph only because it was included in the Thumbnail, it is not clear that the use relied on the Photograph’s creative elements.

The third fair use factor—the amount and substantiality of the portion used—asks whether the copying used more of the copyrighted work than necessary and whether the copying was excessive. Here, the extent of Townsquare’s use turned on whether it embedded the Video or left it out of the Article entirely. Once Townsquare decided to embed the Video, there was no way for it to limit the amount of the Photograph on public display. Because Townsquare had a transformative purpose in using the Photograph because its inclusion was merely incidental to embedding the Podcast, Townsquare “used only as much of the Photograph as was already included in” the Thumbnail, which was “no more than was necessary.”

The fourth and final fair use factor considers “the effect of the use upon the potential market for or value of the copyrighted work,” the relevant inquiry being “whether the copy brings to the marketplace a competing substitute for the original. The Court found that there was little risk that someone looking to license or purchase an image of Lynch would select the Thumbnail instead of the Photograph. Therefore, this factor also weighed in favor of fair use.

The Court found that the first and fourth factors weighed in favor of Townsquare, while the second factor favored Hames and the third was neutral. Considering the limited impact of the second factor given Townsquare’s transformative use, this was sufficient to establish the affirmative defense of fair use at the motion to dismiss stage. Townsquare’s motion to dismiss was therefore granted.

The Case is No. 1:24-cv-03875-ALC.

Judge: Carter, Jr., A.

Attorneys: Renee Jennifer Aragona (Sanders Law Group) for William Hames. Abigail Bain Everdell (Davis Wright Tremaine LLP) for Townsquare Media, Inc.

Companies: Townsquare Media, Inc.

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