Summary
The Second Circuit reviewed a judgment on the pleadings in a copyright infringement action involving Townsquare Media’s publication and embedding of videos created by Delray Richardson. The court held that fair use of the entire Jordan Video could not be resolved in Townsquare’s favor at the pleading stage and that the de minimis doctrine did not bar claims concerning recognizable screenshots. It affirmed dismissal of the claim concerning the embedded Melle Mel Video because YouTube’s Terms of Service granted a license covering Townsquare’s use, vacated in part, and remanded.
Topics
Practice areas
Questions Presented
- Whether Townsquare was entitled to judgment on the pleadings on its fair-use defense concerning its republication of the entire Jordan Video.
- Whether Townsquare's use of screenshots from the Jordan and Melle Mel Videos was nonactionable de minimis copying.
- Whether the license contained in YouTube's Terms of Service authorized Townsquare's embedding of the Melle Mel Video.
- Whether the Second Circuit should resolve, at the pleading stage, whether embedding content constitutes actionable copying under the Copyright Act.
Holdings
- Townsquare was not entitled to judgment on the pleadings based on fair use because its republication of the entire Jordan Video plausibly provided viewers with a substitute for the original video, and the fair-use factors did not decisively favor Townsquare on the limited pleading-stage record.
- The de minimis doctrine did not establish noninfringement as a matter of law because Townsquare prominently displayed recognizable screenshots as the backgrounds of article headlines, making the copyrighted works central rather than incidental to the secondary works.
- YouTube's Terms of Service granted Townsquare a license to access and use the Melle Mel Video through YouTube's embedding feature, so Richardson's copyright claim based on Townsquare's embedding of that video was foreclosed.
Key quotations
“Nevertheless, when evaluating the fair-use defense at the pleading stage, we must be mindful that in order to warrant dismissal of a complaint, the fair-use factors must point decisively in the defense’s favor.” (10-11)
“In sum, a determination of fair use of the Jordan Video at the pleading stage cannot be justified. 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.” (25-26)
“Whether a secondary use of a copyrighted work is de minimis depends on whether the secondary use would be recognizable to an “average lay observer,” an inquiry that necessarily turns not just on how much of the copyrighted work a potential infringer uses but also on how the work is presented.” (32)
“Both the license and sublicense included the ability to republish the video from YouTube by means of embedding.” (36)
Factual background
Richardson, a professional videographer, recorded a forty-two-second video of Michael Jordan breaking up a fight and later recorded an interview in which rapper Grandmaster Melle Mel criticized Eminem. Townsquare reproduced the entire Jordan Video through an embedded social-media post, embedded the Melle Mel Video from YouTube in two articles, and used screenshots from each video as article-headline backgrounds. Richardson alleged that these uses infringed his copyrights.
Procedural history
Richardson sued Townsquare Media for reproducing or embedding his Jordan Video and Melle Mel Video and for using screenshots from those videos in article headlines. The Southern District of New York granted Townsquare judgment on the pleadings, concluding that the Jordan Video use was fair, the screenshots were de minimis, and the Melle Mel Video embedding was authorized by a YouTube license. The Second Circuit vacated the judgment as to the Jordan Video and both screenshots, affirmed as to the embedding of the Melle Mel Video, and remanded.
Remand instructions
Remand for further proceedings consistent with the opinion. The district court's judgment is vacated as to Townsquare's use of the Jordan Video and the screenshots from the Jordan and Melle Mel Videos, and affirmed as to Townsquare's embedding of the Melle Mel Video.