We Still Don’t Know the Second Circuit’s Position on Embedding and Copyright Infringement–Richardson v. Townsquare

This case involves two videos: a video of basketball legend Michael Jordan breaking up a fight, and a video interview with rapper Melle Mel. Videographer Delray Richardson owned the copyrights to both videos. Townsquare operates XXL, an online hip-hop news publication. A Twitter account, DailyLoud, posted the Jordan video to X. XXL embedded it in a story about the video. The Art of Dialogue posted the Melle Mel video to YouTube, and XXL embedded that in a story about the interview. XXL also used screengrabs from the videos in its news coverage of the associated stories. Richardson challenged both the embedding and the screengrabs. My prior blog post on this case.

The central question in the case is whether embedding is infringing. We don’t get an answer to that question. XXL chose to defend the case on other grounds at the district court, so it’s not at issue in the appeal. As a result, the panel assumes “for the purposes of this appeal, that embedding constitutes actionable use.”

[Note: normally my blog coverage would include a screengrab of one of the videos in question so you could see the content at issue in this dispute. Given this ruling, I worry I’ll join the defendant list if I do so. More chilling effects from legal uncertainty.]

Fair Use of Jordan Video

Nature of Use–Transformativeness

The court questions the transformativeness of XXL’s embedding:

Townsquare republished the Jordan Video in a news article describing a controversy surrounding the video, Townsquare’s reporting at times appears more focused on the mere existence and presentation of the video itself. No place is that more evident than in the article’s headline. Instead of referring to any of the article’s commentary, the headline presents the video as the article’s primary draw: “Michael Jordan Intervenes in Heated Confrontation Involving Wack 100 in Viral Video from 2015 —Watch.” The article then opens by explaining that the DailyLoud had posted the video on X just one day prior. That is the extent of the article’s discussion of the video’s online circulation. It moves on to describe the incident depicted in the video, but that portion of the article simply describes what viewers of the video can see for themselves….

there is a difference between gesturing towards a transformative message and actually communicating that message. Here, Townsquare’s commentary was limited to a few sentences explaining that a third party had republished the video and opined that an individual who does not appear in it was Charleston White. Notably, the article does not identify anything in the video that would corroborate that speculation for the viewer; instead it relies on the unexplained say-so of the DailyLoud’s post. It is therefore debatable whether the article meaningfully communicated any new commentary about the video (which could justify its copying) or instead merely summarized commentary about the fight depicted and relied on the video solely as an illustrative aid (in which case the copying served little transformative function)

Despite these musings, the court doesn’t definitively resolve the transformativeness question, saying the other factors negate fair use.

Nature of Use–Commerciality

“Townsquare is a for-profit entity, a fact that weighs against fair use….Townsquare ran advertising alongside its embedded depiction of the Jordan Video, but classic legacy news media such as newspapers, news magazines, and commercial television stations did, and do, the same.”

The court decides the nature of use factor is at best neutral.

Nature of Work

“The Jordan Video was largely factual, and, as Richardson concedes, did not involve meaningful creative choices. That Richardson was fortunate to be in the right place at the right time to record Jordan’s unexpected intervention does not make the work creative.” The court says this factor weighs in favor of fair use but “plays a minimal role in the fair-use assessment.”

Amount Taken

XXL republished the entire video, which it said was required by the embedding. The panel questions the necessity:

Townsquare could have, for example, republished the text of the post along with a portion of the video. Or it could have taken a screenshot of the post with a still of the video (as Townsquare did for the article’s headline). Or it could have simply reported on the controversy and included a hyperlink to the post, forgoing any reproduction of the video. While embedding the post may have been more expedient for Townsquare, nothing compels a conclusion (and certainly not at this stage) that embedding the post and, with it, the entire video was reasonable in relation to Townsquare’s limited news reporting.

I guess the panel is really that willing to second-guess XXL’s editorial processes? And the court says XXL could have taken a video screengrab instead of embedding the whole video, but later in the opinion it doesn’t resolve whether that screengrab would itself be infringing, so…is that a non-infringing option or not?

XXL also argued that viewers needed to see the entire video to evaluate its hypothesis about who’s in the video. The court responds that the person at issue never appears in the video (only off-camera).

XXL also argued that embedding allowed its audience to see the original comments. The court responds that XXL could have just done summary reporting of that information.

Instead, the court says “Perhaps discovery may offer further editorial or technological justification for Townsquare’s decision to use the entirety of the video.” Sounds expensive.

Market Effect

The court says this is the “most important” fair use factor.

The court says Richardson’s complaint didn’t make clear what the market for the video is. The court rewards this pleading omission: “Townsquare cannot decisively demonstrate the absence of an effect of its use of the Jordan Video on the market for the original video based on the allegations in a complaint that say little or nothing about the nature of that market.” It’s true that the defense has the burden to establish fair use, but the panel also rewards plaintiff drafting gamesmanship.

Without any guidance from the complaint, the panel then veers into speculation-land:

It is entirely unclear that a viewer of Townsquare’s story would gain anything from watching a version of the Jordan Video unencumbered by Townsquare’s reporting, advertising, and the X post text and border. And if viewers are unlikely to gain anything, they would have little reason to seek out the Jordan Video from Richardson. And without viewers, Richardson would experience market harm either by lost advertising revenue (if, like Townsquare, he had published the video online) or lost rental or purchase revenue (if he provided the video directly to consumers).

I can’t tell if the initial X poster (DailyLoud) was authorized or not. If it was an authorized post to X, then odds are that the X posting wouldn’t generate any of these revenues, in which case the court’s discussion is both hypothetical and wrong.

The court summarizes its view on the market effect at early litigation stages: “because Townsquare has not shown that its use of the Jordan Video is not a market substitute for the Jordan Video itself, the fourth statutory factor weighs against fair use.”

Summary of Fair Use

To whatever extent Townsquare’s use of the Jordan Video is transformative (if at all), that fact is outweighed by Townsquare’s decision to republish the entire video. That choice rendered its use of the video a plausible market substitute for the video itself. Discovery may further explicate the relevant market factors, and thus demonstrate that Townsquare’s use of the full video was reasonably justified or that customers interested in watching the video would still seek out the original to avoid the article’s text and advertising

As this passage indicates, XXL could still win fair use–it will just take more time and money to find out. But notice how the court had to twist the factors to make them (other than the amount taken) actually weigh against fair use. Perhaps reflecting the pleading burdens, the court was extraordinarily charitable to the plaintiff–almost certainly more than the plaintiff deserved. This is how bad cases survive in court longer than they should.

Screenshots as Infringement

The lower court said the screengrabs were de minimis copying. The court says that doctrine doesn’t apply because “By taking screenshots, Townsquare made literal copies
of video “frames” and incorporated those copies into its articles.” The court sees the de minimis exception quite narrowly: “we have typically found de minimis use where the
defendant’s inclusion of the copyrighted work was incidental or unidentifiable in
the secondary work.” In contrast, “Townsquare prominently displayed the screenshots, which are clearly recognizable as taken from the embedded videos (as Townsquare intended them to be), to communicate the subject matter of its articles.”

The court doesn’t address fair use for the screengrabs because the lower court didn’t rule on that topic. Nevertheless, the court cautions the lower court that “fair-use analysis is generally ill-suited to the pleading stage.”

It’s truly mind-blowing to believe that it could be infringing to display a screengrab from a video when discussing the video. I expect courts will bless the republication of screengrabs eventually, but not using the de minimis doctrine.

Permission to Embed the Melle Mel Video

Art of Dialogue uploaded the Melle Mel video to YouTube. YouTube’s upload TOS expressly authorizes third-party embedding, which seemingly extends permission to XXL. Richardson said the court couldn’t consider these facts, but the court responds that Richardson:

does not, for example, assert that the Melle Mel Video was uploaded onto YouTube without his consent or that the version of the Terms that Townsquare attached was in any way inaccurate. Had he done so, the resulting factual dispute would have rendered the Terms premature for consideration at the pleading stage. But his failure to do so confirms that he sought to rely on “clever drafting” to render his complaint “invulnerable to Rule 12[c].”

A reminder that the court just accepted similar “clever” drafting in the fair use considerations…so I guess pleading cleverness only works sometimes? Also, the court saying that all Richardson had to do was contest the initial upload authorization or the TOS terms (which they would only do in good faith per Rule 11–wink wink) and the court would survive the case to summary judgment provides plaintiffs with yet more leverage.

To the extent that XXL didn’t comply with any conditions from YouTube’s TOS embedding license, the court says that’s YouTube’s issue to enforce, not Richardson’s.

Implications

I could recapitulate this decision:

• The Second Circuit doesn’t like to decide fair use on motions to dismiss. (XXL requested judgment on the pleadings, but the court sidestepped the difference in stages by collapsing the two into a single “pleading stage”).
• The de minimis defense is a niche exception.
• Social media TOSes authorize third-party embedding. If the uploader had the permission to upload, then downstream embedders aren’t liable.

Stated this way, perhaps this opinion doesn’t look so bad.

However, the court’s reticence to resolve fair use early is problematic in light of Richard Liebowitz’s recent litigation rampage in Second Circuit-governed courts, where courts had to resolve fair use early to clear out his trash lawsuits. Rulings like this help copyright trolls and other copyright owners weaponize the litigation process and increase defense costs. Even if the lower court rules for Townsquare/XXL on remand, significant damage is done simply by letting unmeritorious cases get that far.

All of these litigation efforts could be avoided if the Second Circuit followed the Ninth Circuit’s approach to embedding, a question that wasn’t before this panel. In the 9th Circuit, embedding isn’t copyright infringement, so defendants don’t need to justify fair use or try to make the de minimis doctrine something more than it is. We’ve been waiting a long time for the Second Circuit to clarify its stance on embedding. Until then, we get rulings like this and expensive litigation cycles.

Similarly, we need stronger judicial pronouncements that screengrabs aren’t infringing. The entire meme and GIF ecosystem is riding on that issue.

Case Citation: Richardson v. Townsquare Media, Inc., 2026 WL 1097502 (2d Cir. April 23, 2026)