The US Court of Appeals for the Second Circuit affirmed in part and reversed in part a judgment on the pleadings, clarifying that the de minimis doctrine does not apply where the copyrighted work is identifiable in the secondary use – even if only a single frame is copied – and that fair use is unlikely to be resolved at the pleading stage when an entire copyrighted work is republished for commercial purposes. Richardson v. Townsquare Media, Inc., Case No. 25-291-CV (2d Cir. Apr. 23, 2026) (Lynch, Nardini, Menashi, JJ.)
Delray Richardson operates the YouTube channel “Straight Game TV.” In May 2015, he posted a 42 second video showing Michael Jordan intervening in a confrontation. The video gained widespread attention in July 2023 after the hip hop blog DailyLoud reposted it in full on X. Townsquare Media subsequently published an article reporting on the incident and embedded DailyLoud’s X post containing the entire video.
In a separate incident, Richardson recorded an interview with rapper Grandmaster Melle Mel in March 2023. Richardson posted a three-minute clip of the interview, in which Melle Mel made controversial statements about Eminem, to YouTube. The following day, Townsquare published an article discussing the interview and embedded the YouTube clip. The article’s header image included a screenshot taken from the Melle Mel video, depicting Melle Mel next to an image of Eminem. Two days later, Townsquare published a follow up article about rapper 50 Cent’s response and included a second screenshot from the same video, this time placed next to an image of 50 Cent.
Richardson sued Townsquare for copyright infringement based on Townsquare’s use of the Jordan video, the Melle Mel video, and the two screenshots. Townsquare moved for judgment on the pleadings, arguing that:
- Its use of the Jordan video constituted fair use.
- Its embedding of the Melle Mel video was authorized under YouTube’s terms of service.
- The screenshots were de minimis.
The district court accepted each argument and dismissed the case in full. Richardson appealed.
The Second Circuit reversed the district court’s fair use ruling as to the Jordan video. Applying the four factors under 17 U.S.C. § 107, the Second Circuit disagreed with the district court’s analysis of the first, third, and fourth factors.
As to the first factor (the purpose and character of the use), the Second Circuit concluded that it was “debatable” whether Townsquare’s article added meaningful commentary, and even if it did, any transformative character was substantially offset by the use’s commercial nature.
On the third factor (the amount and substantiality of the portion used), the Second Circuit emphasized that Townsquare republished the entire video, rather than linking to or embedding it in a manner consistent with the original platform. That full reproduction weighed heavily against fair use at the pleading stage.
With respect to the fourth factor (the effect on the potential market), the Second Circuit concluded that Townsquare failed to carry its burden of showing that its use did not usurp a market for the Jordan video.
The Second Circuit placed particular weight on the decision to republish the work in its entirety, explaining that “[t]o 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.” The decision reinforces that wholesale republication of copyrighted works for commercial purposes typically precludes fair use, at least absent a developed factual record.
The Second Circuit also reversed the district court’s de minimis ruling. The Court clarified that de minimis use is not properly understood as an affirmative defense, but rather as a failure to establish infringement because the copying is too insubstantial to support a finding of substantial similarity. The operative inquiry, the Court explained, is whether the copyrighted work is “observable” or identifiable in the accused work. If the copyrighted work is recognizable to an average lay observer, the de minimis doctrine does not apply. Although the screenshots at issue consisted of only a single frame from a three-minute video, the Court concluded that an average observer would recognize the Melle Mel video as their source. Accordingly, the screenshots were not de minimis as a matter of law.
The Second Circuit affirmed dismissal of the infringement claim based on Townsquare’s embedding of the Melle Mel video. Under YouTube’s terms of service, users grant other users a license to embed videos “as enabled by a feature of” YouTube. By uploading the video and agreeing to the terms, Richardson granted Townsquare a license to embed the video directly. That license did not extend to the Jordan video, however, which was copied from X rather than embedded from YouTube, or to the screenshots, which were not embedded via YouTube’s functionality.
Accordingly, the Second Circuit remanded the case for further proceedings as to the Jordan video and the screenshots, while affirming dismissal of the claim related to the embedded Melle Mel video.
Practice note: This decision narrows reliance on the de minimis doctrine. Media companies should exercise caution when using unlicensed screenshots of viral content to illustrate or headline articles where the source material is recognizable, as even a single frame may support an infringement claim. The decision also underscores the importance of embedding, rather than reuploading or reproducing, YouTube content to take advantage of licenses granted under YouTube’s terms of service.
