The Second Circuit has revived part of a copyright lawsuit against Townsquare Media’s XXL website over its use of two videos, but it stopped short of settling the bigger question of whether embedding itself can amount to infringement. In Richardson v. Townsquare Media, Inc., the court vacated the district court’s ruling on the Jordan video and the associated screenshots, affirmed dismissal of the claim tied to the Melle Mel interview, and sent the case back for further proceedings, according to summaries of the ruling from Justia, Stanford’s Copyright and Fair Use Center and Law360. The appeal arose from videographer Delray Richardson’s claims that XXL unlawfully embedded and displayed his footage in articles about the underlying incidents.

The panel did not decide whether embedding is independently infringing because XXL defended the case on other grounds below, leaving that issue outside the scope of the appeal. For the Jordan video, the court assumed for purposes of review that embedding was actionable and then treated fair use as an early-stage question that could not be resolved definitively on the pleadings. The opinion, as summarised by the case reporters, questioned whether XXL’s use was truly transformative, noting that the article appeared to lean heavily on the video’s own appeal while offering only limited original commentary.

The court also found the commercial nature of XXL’s publication relevant, though not decisive, while recognising that the Jordan footage was largely factual and therefore closer to the kind of work that receives thinner copyright protection. It gave the most weight to the amount copied, stressing that XXL reproduced the whole video and could have chosen less expansive alternatives, such as a hyperlink, a still image or a textual summary. On market harm, the panel said the complaint did not clearly describe the relevant market for the video and concluded that, at this stage, XXL had not shown that its use was not a substitute for the original.

The screenshots fared no better. According to the summaries, the Second Circuit rejected the district court’s view that the images were merely de minimis copies, explaining that Townsquare had taken literal frames from the videos and used them prominently in its articles to identify the subject matter. The court did not decide fair use for those still images, but it indicated that such questions are usually ill-suited to resolution at the pleading stage.

By contrast, the Melle Mel claim failed because the video had been uploaded to YouTube, and YouTube’s terms expressly permit embedding by third parties. The court accepted that licence-based defence at the pleading stage, concluding that any alleged breach of YouTube’s conditions would be a matter between YouTube and the uploader rather than Richardson. Taken together, the ruling leaves the Jordan and screenshot claims alive while reaffirming that platform terms can matter in downstream embedding disputes, even as the broader legality of embedding under copyright law remains unresolved in the Second Circuit.

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Source: Noah Wire Services