Copyright Owners Are Still Suing Over Embedding

January 18, 2025 · by · in Copyright, Licensing/Contracts

I thought the legality of embedding was definitively resolved when the Ninth Circuit reaffirmed the “server test” in the Hunley v. Instagram case (note: the 9th Circuit has reaffirmed Hunley twice). Not so. Plaintiffs are still regularly bringing lawsuits over embedding. Three embedding rulings, all from Tuesday:

Richardson v. Townsquare Media, Inc., 2025 WL 89191 (S.D.N.Y. Jan. 14, 2025)

This cases involves two videos, one involving Michael Jordan that someone posted to Twitter (seemingly without permission?), and the other involving rapper Melle Mel posted to YouTube. In each case, the publisher XXL (a publisher of hip-hop related news) reported on the videos and embedded the video and included a screenshot. The plaintiff apparently owned the copyrights to both videos and sued XXL for copyrght infringement.

With respect to the Jordan video, I assume the video was infringing when uploaded to Twitter, which is why a license argument wouldn’t work. The court doesn’t discuss the Hunley case at all. Instead, XXL relied on a fair use defense, which works:

  • Nature of use: “the video was the subject of the news story and because the article added new information and context about the contents of the video.”
  • Nature of work: “The original Jordan video was published online and depicted factual and newsworthy events.”
  • Amount taken: “Townsquare copied the entire Jordan video. However, because it embedded the DailyLoud X post which contained the video in its entirety, Townsquare could not reasonably have copied only a portion of the video, Additionally, in the context of reporting on the events depicted in the video and the individuals possibly involved in those events, copying the entire video was necessary to “convey information to the public accurately.””
  • Market effect: “Townsquare’s article reporting on the original Jordan video similarly contained that original video as part of an embedded post from X, including additional text and images from the X post, and there is thus little to no risk of market usurpation.”

With respect to the Melle Mel video:

When The Art of Dialogue [the copyright owner’s predecessor] uploaded the Melle Mel video to YouTube, it granted a license to YouTube to use the video and a sublicense to other users of YouTube, including Townsquare, to use the video. Those licenses were explicitly and unambiguously laid out in YouTube’s Terms of Service, and the sublicense clearly extends to embedding the video.

The screenshots are also excused: “Single still-frame screenshots from videos posted on social media platforms, which make up a very small fraction of the original video, are generally considered to constitute de minimis use and fall below the substantial similarity threshold.” Cite to Konangataa v. ABC.

Lynk Media LLC v. Mediaite LLC, 2025 WL 89226 (S.D.N.Y. January 14, 2025)

Same district court, same day, different result (most likely because this was a motion to dismiss instead of a motion for judgment on the pleadings). Mediaite reported on three videos owned by the plaintiff and included the videos in the stories via embedding.

The court says the SDNY courts have rejected the server test, citing Goldman v. Breitbart, Nicklen, and McGucken. The court also says it can’t consider the evidence that Mediaite used embedding on a motion to dismiss.

The court also rejects the fair use defense at the motion to dismiss stage. The complaint didn’t establish how much of the videos were shown. (If it was embedding, it should have been 100%).

Mediaite also argued that the embedding was authorized by Twitter’s TOS. The court questions if the TOS grants licenses to embed and if the uploaders had sufficient copyright permissions to confer rights to Mediaite.

As a result, Mediaite struck out on all of its embedding defenses at the motion to dismiss stage.

Lynk Media LLC v. IHeartMedia, Inc., 2025 WL 208768 (W.D. Tex. Jan. 14, 2025)

Fedun posted three videos to social media and then assigned the copyrights to Lynk Media. IHeartMedia apparently embedded the videos to its website, and it claims the TOSes permitted the embedding. The court says that IHeartMedia relied on facts beyond the complaint, and it questions if the Fifth Circuit will recognize the server test. Motion to dismiss denied.

Takeaways

Some 2025 thoughts about the embedding issue:

  • If you’re a fan of 1990s nostalgia, note that it’s 2025 and we’re still debating if and when linking is infringing.
  • In general, it is legally safer to embed content than to download/reupload. However, these cases show that embedding isn’t risk-free, especially outside the Ninth Circuit.
  • Many UGC sites’ TOSes contain license provisions that include permission to authorize third-party embedding. But if the initial upload is infringing, those license provisions don’t help anyone–the infringing upload taints everyone downstream. The Hunley rule avoids this issue by saying that the embedder isn’t infringing, regardless of the provenance of the embedded content.
  • Lynk Media is positioning itself for many appearances on this blog. I note that they seem to have adopted a strategy where they file generic complaints that (intentionally?) withhold key facts, like whether the video was embedded or downloaded/reuploaded. In other words, file a dumb enough complaint that the court can’t tell what you’re arguing and thus won’t grant the motion to dismiss. It’s a good way to boost the odds of settlements, as surviving a motion to dismiss raises the defense costs substantially. At the same time, such a strategy, if intentional or habitual, should be sanctionable. In particular, courts should categorically dismiss complaints if they don’t explicitly explain whether the defendant is being accused of embedding or uploading. A threadbare generic recitation that the defendant is reproducing or distributing the work shouldn’t be good enough. Not dismissing such generic complaints rewards copyright owners for selectively withholding material facts.
  • I note that Townsquare won on a judgment on the pleadings, where it could introduce evidence, as opposed to a motion to dismiss, whether the defendant’s evidence is categorically excluded. Skipping the motion to dismiss and going for an early judgment on the pleadings might be an interesting defense strategy to consider.
  • Perhaps because it was a judgment on the pleadings, Townsquare got some pretty favorable bounces on the fair use defense–especially on the market effect, because embedding is absolutely in competition with a paid license to upload.
  • There is an ever-growing genre of news stories that report on third-party copyrighted videos. It’s impossible to report on the video without showing it. In general, this genre of reporting + embedding is an essential part of our information ecosystem and should be legally protected. However, it appears to be a breeding ground for trollish litigation as well. That situation isn’t at equilibrium yet, but wider adoption of the server test would provide a decisive resolution.