Second Circuit Vacates Dismissal of Copyright Claims Over Viral Video and Screenshots in News Articles

Plaintiff Delray Richardson, a professional videographer, sued Townsquare Media after its hip-hop news website, XXL, embedded videos he created. The dispute centers on three instances where Townsquare used Richardson’s content: a 42-second video of basketball legend Michael Jordan breaking up a fight, and an interview with rapper Melle Mel criticizing Eminem.

In each of the three articles Townsquare published, it embedded the full video and included a screenshot from the relevant footage as the background for its headline. Richardson sued, claiming these uses violated his copyrights. The district court granted Townsquare judgment on the pleadings, concluding that the use of the Jordan Video was fair, the screenshots were de minimis, and the Melle Mel Video was permitted under YouTube’s Terms of Service.

The Second Circuit disagreed in part and agreed in part. The court held that the district court incorrectly determined, at the pleading stage, that Townsquare’s use of the Jordan Video was fair. Because Townsquare republished the entire video, it potentially provided consumers with a substitute work that obviated the need to seek out (and pay for) the video from Richardson.

The court also held that the district court erroneously applied the de minimis doctrine to Townsquare’s use of the screenshots from both videos. The court explained that the de minimis doctrine does not apply in cases where the secondary use is clearly copied from the original work and is wholly recognizable. Here, Townsquare prominently displayed the screenshots as the backdrop to the headline in each article to signal the topics of its stories.

However, the Second Circuit affirmed the district court’s judgment as to Townsquare’s use of the Melle Mel Video. The court held that Richardson’s claim was foreclosed by the license granted by YouTube’s Terms of Service, which unambiguously covers Townsquare’s use.

Accordingly, the Second Circuit vacated the district court’s judgment as to Townsquare’s use of the Jordan Video and the screenshots from both videos, affirmed the district court’s judgment as to Townsquare’s use of the Melle Mel Video, and remanded for further proceedings consistent with this opinion.