IP Law Daily, COPYRIGHT—S.D.N.Y.: X users, beware: No free reign for embedding third party posts, (Oct 1, 2025)

By Matthew Hersh, J.D.

Unlike other platforms like YouTube, X’s terms of service do not permit embedding without permission from the original content owner.

A jury could not reasonably find that X’s terms of service freely permitted users to embed the posts of other users on their own feeds, the federal court for Manhattan has held. The court, in granting summary judgment to a videographer who documented a number of noteworthy news events in the year 2021 through 2023, also found that the unlicensed re-embedding of videos posted to X threatened market harm to the entire licensing market for the work and not merely harm to the market for X embeds (Lynk Media, LLC v. Independent Digital News and Media, LLC, No. 1:24-cv-00583-JPC (S.D.N.Y. Sept. 29, 2025)).

The lawsuit involves five videos taken by professional journalist Oliya Fedun and posted to her X feed. In each case, Fedun alleges, a British media company associated with the newspaper The Independent used X’s embedding function to repost her tweets to both its English and Spanish language X pages. Two of the videos depicted political rallies, one depicted an anti-COVID mandate protest, one depicted a Pro-Palestinian demonstration, and another showed a lonely puppy guard dog on the frontlines of the war in Ukraine.

Fedun, acting through her loan-out company Lynk Media, sued The Independent’s parent company, Independent Digital News and Media, for copyright infringement. Following discovery, both parties moved for summary judgment, leading to this opinion.

X terms of service. The court found that X’s terms of service did not permit The Independent’s re-embedding of the videos. X’s terms of service, the court noted, specify that “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.” The problem for The Independent, the court emphasized, was that these terms “grant a license to use content only to [X], and grant [X] only the right to sublicense to others.” Courts in this district, the court emphasized, “have uniformly rejected the existence of such a license under this language.

This conclusion was underscored, the court found, because of the “stark contrast” between the terms of service of X and YouTube. Under YouTube’s terms of service, each user grants each other user of the service “a worldwide, non-exclusive, royalty-free license to access [the user’s] [c]ontent through the [s]ervice, and to use that [c]ontent, including to reproduce, distribute, prepare derivative works, display and perform it, only as enabled by a feature of the [s]ervice (such as video playback or embeds).” Put differently, the court noted. “YouTube’s terms of service grant[] YouTube a license and authorize[] YouTube to sublicense to others, and then YouTube explicitly and unambiguously exercise[s] that authority by granting other YouTube users a sublicense which clearly extends to embedding.” X’s terms of service, the court emphasized, “do no such thing.”

Finally, the court concluded, the terms of service issue was so clear that the court could decide the matter on summary judgment—without having to give the final word to a jury. For one thing, the court reiterated, X’s terms of service were unambiguous. Moreover, the court noted, even if the terms were ambiguous, summary judgment could still be granted “if the ambiguities may be resolved through extrinsic evidence that is itself capable of only one interpretation, or where there is no extrinsic evidence that would support a resolution of these ambiguities in favor of the nonmoving party’s case.” Here, the court noted, The Independent “forewent introducing any extrinsic evidence in discovery,” asserting that the evidence was not needed. That would end the debate over the license.

Fair use. The court also found that The Independent did not make a fair use of the five videos. The media company argued that it made a fair use of the videos because it used them in the context of new reporting on issues of substantial public interest. But such a purpose is not transformative “where, as here, the purpose of the original [v]ideos was undisputedly news reporting, too,” the court noted. Indeed, the purposes of the original videos and the later embeds, the court emphasized, were “exactly the same: to document the current and newsworthy events” that were the subject of the videos. “Using a photo for the precise reason it was created does not support a finding that the nature and purpose of the use was fair,” the court noted, “even in the context of news reporting.”

The fourth fair use factor, effect on the market, also weighed in favor of the videographer. The court, drawing on recent caselaw and scholarly work, noted that courts were divided over whether the embedding of social media should be considered a substitute for the content owner’s entire licensing market or only for the content owner’s market—to the extent one exists—for licensing similar social media embeds. At least under the facts of this case, the court found, the latter rule was better. Under the narrower market view theory, the court noted, “copyright holders would be presented with a Hobson’s choice: share their work on social media and risk rampant copyright infringement through embedded posts, or keep their work private and risk failing to get their work noticed and, subsequently, licensed and paid for.” Thus, at least on the record presented in this case, the court concluded that “widespread adoption of embedded posts copying the [v]ideos could overtake the market for those [v]ideos because if outlets could use such images for free, there would be little or no reason to pay for [the videographer’s] works.”

None of the other fair use factors altered this conclusion, the court found. The second factor, measuring the nature of the underlying work, favored neither side—the traditional outcome when the creative work is a previously-published photographer or video. As to the amount and substantiality of the use, the court noted, The Independent’s embedding took “the heart” of the original videos. There was no fair use here.

Willfulness. But while the videographer won on the licensing and fair use issues, it would have to await a jury trial to get a decision on whether The Independent’s infringement was willful for statutory damages purposes. Copyright infringement is willful, the court noted, “if the plaintiff shows (1) that the defendant was actually aware of the infringing activity, or (2) that the defendant’s actions were the result of reckless disregard for, or willful blindness to, the copyright holder’s rights.” Here, there were facts in the record that pointed both ways. On the one hand, the court noted, the media company had at one point sought a license over two of the videos before copying them without permission. Cutting the other way, the court noted, was that the media company had a code of conduct that expressly prohibited the re-publication of material on social media without permission. Ultimately, the court concluded, a jury would have to decide.

The Case is No. 1:24-cv-00583-JPC.

Judge: Cronan, J.

Attorneys: James H. Freeman (Sanders Law Group) for Lynk Media, LLC. John Michael Griem (Carter Ledyard & Milburn LLP) for Independent Digital News and Media, LLC.

Companies: Lynk Media, LLC; Independent Digital News and Media, LLC

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