Copyright Lawsuits Over Embedding Are Still a Thing

After the Ninth Circuit’s Hunley v. Instagram ruling in 2023, I naively assumed that the case established essential precedent that would quickly end other legal challenges to embedding. WRONG! The anti-embedding cases seem to be going strong, especially in SDNY. We desperately need the Second Circuit to weigh in on these lawsuits and, I hope, put an end to them.

Lynk Media, LLC v. Independent Digital News and Media LLC, 2025 WL 2771625 (S.D.N.Y. Sept. 29, 2025)

The plaintiff Oliya Fedun is a videographer. The defendant is associated with the British newspaper the Independent. Fedun created 5 videos of newsworthy events and posted them to Twitter. The Independent embedded those five videos on its website.

The defense conceded the key question about whether or not it violated Fedun’s 106 rights, thus bypassing the Ninth Circuit’s Hunley-reaffirmed “server test” excuse:

it is undisputed that Defendant copied those original Videos wholesale by embedding within its articles the tweets in which the Videos were displayed. Defendant expressly disclaims arguing “that there is no [infringement] liability” because it embedded tweets—meaning that “the videos at issue were actually stored on Twitter’s servers”—rather than copying the Videos directly.

In a footnote, the court explains: “District courts in this Circuit have rejected the so-called Server Test.” So I guess the defense thought it was too futile to try, even to preserve it for an appeal?

Instead, the defense made its stand on Twitter’s TOS, which it argued granted it a sublicense to embed. The court says “By their express language, Twitter’s terms grant a license to use content only to Twitter, and grant Twitter only the right to sublicense to others,” which the court says Twitter did not do.

The court also dismisses the fair use defense on summary judgment.

• Purpose/character of use. “the purposes of Plaintiff’s copyrighted Videos and Defendant’s reproduction of the Videos in embedded tweets are exactly the same: to “document” the “current and newsworthy events” that are the subject of those Videos.” The court disregards the context that the defendant created around the embed. As for commerciality, “Defendant is a ‘for-profit media company.’ And its articles containing the embedded tweets are replete with commercial advertisements. Together, such facts sufficiently establish commerciality.” Thus, “Courts in this Circuit roundly agree that simply reporting on the contents of visual media is an insufficient justification for copying that media.”
• Nature of work. The court says this factor is neutral despite the videos being factual and published.
• Amount taken. The defense embedded the entire videos. The court says the defense could have used a screenshot instead. 🙄
• Market effect. “the embedded posts suffice to establish market harm…the tweets at issue here allow the article’s reader to view the video unimpeded by “clicking on the video to watch it in a window in the embedded Tweet.”…Under Defendant’s theory, 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.”

The purported Hobson’s Choice actually is a false dichotomy. There are other potential options, including social media that could give uploaders the power to decide if they authorize embedding on an account or item basis. Some uploaders would choose to authorize, others would not. Yet, dubiously, the Lynk Media team choose to keep uploading photos to Twitter and then suing over the inevitable embedding that follows. It creates a perpetual litigation machine.

Lynk Media, LLC v. Independent Digital News and Media LLC, 2025 WL 3204302 (S.D.N.Y. Nov. 17, 2025)

The court denies the Independent’s reconsideration motion regarding the putative sublicense in Twitter’s Developer API TOS.

Lynk Media LLC v. Townsquare Media, Inc., 7:24-cv-04222-NSR (S.D.N.Y. Dec. 1, 2025)

Citing the Independent Digital case above, the court says that Twitter’s TOS doesn’t bail out embedding. However, citing a line of cases, the court excuses the defendant’s “use of the Screenshot because a single frame of a ten-minute-and-twenty-two second video in a “quantitative sense… is trivial.””

Urbanimage Media Ltd. v. iHeartMedia, Inc., 2025 WL 2182458 (W.D. Tex. July 29, 2025)

This case involves a photo of Tom Waits. It was included in a YouTube video that a radio station embedded on its website. The court disagrees with the Ninth Circuit’s server test and rejects the motion to dismiss:

The plain text of the Copyright Act, the legislative history behind its enactment, and subsequent Supreme Court Jurisprudence provide no support for the server test, a rule that allows physical location or possession of an image to determine whether a work has been “displayed” within the meaning of the Copyright Act…

Under the plain meaning of “display,” IHeartMedia “showed” the Photograph by embedding it in a way that a user would see the image while reading the article thus infringing on Plaintiff’s exclusive right to display the Photograph.

Emmerich Newspapers, Inc. v. Particle Media, Inc., 3:23-cv-00026-TSL-MTP (S.D. Miss. July 29, 2025)

There is a lot going on with this opinion, but I’ll focus on the article that Newsbreak “framed” Emmerich’s web pages. (Seriously, it’s 2025 and we are still fighting over framing???). The court says “the server test is the more reasonable interpretation of the plain language of the statute.” Thus,

Application of the server to test to the framed-view/WebView articles compels a conclusion that Particle, which did not store any of these images as electronic information and serve electronic information to NewsBreak users, did not violate Emmerich’s exclusive right to display its copyrighted content

Another interesting angle: the court rejects the 1202 claim because “There is no authority for the proposition that a URL appearing in the address bar above copyrighted content constitutes CMI and the court is not persuaded that it is….the URLs are not conveyed in connection with a copyrighted work and therefore, do not constitute CMI.”