Richardson v. Townsquare Media — Second Circuit Revives Copyright Claims Over Michael Jordan Fight Video

Background

Videographer Delray Richardson recorded a 42-second video in 2015 capturing basketball legend Michael Jordan breaking up a fight — a brief but striking moment of an unexpected encounter. The grainy footage attracted little attention for years, until a hip-hop blog called DailyLoud republished it on X (formerly Twitter) in July 2023, claiming the altercation involved social media personality Charleston White.

Townsquare Media, which operates the hip-hop news website XXL, picked up the story. It published an article embedding the DailyLoud’s X post — which included the entire video — under the headline “Michael Jordan Intervenes in Heated Confrontation Involving Wack 100 in Viral Video from 2015 — Watch.” Townsquare also used a screenshot from the video as the article’s header image. Separately, Townsquare had embedded two of Richardson’s YouTube-hosted interviews with rapper Melle Mel, using screenshots from those videos as article headers too.

Richardson sued for copyright infringement. The Southern District of New York (Judge Hellerstein) dismissed all claims on the pleadings, finding that the Jordan Video use was fair, the screenshots were de minimis, and the Melle Mel Video embedding was licensed through YouTube’s Terms of Service.

The Court’s Holding

The Second Circuit, in a precedential opinion by Judge Lynch, reversed in part and affirmed in part.

The Jordan Video — Fair use rejected at the pleading stage. The court found the district court erred on three of the four fair use factors. On transformativeness, the court observed that Townsquare’s article was primarily focused on presenting the video itself — the headline told readers to “Watch” — with only minimal commentary about Charleston White’s possible involvement. The court found it “debatable” whether this amounted to meaningful transformative commentary or mere repackaging. On the amount copied, the court rejected Townsquare’s argument that embedding the full video was “necessary,” noting alternatives like publishing a screenshot with a hyperlink. Most critically, on market harm, the court found that Townsquare’s republication of the entire video could serve as a substitute for the original, potentially destroying the market for licensing the footage. These factors precluded resolving fair use at the pleading stage.

The screenshots — De minimis doctrine does not apply. The court rejected the argument that the screenshots were too trivial to constitute infringement, holding that the de minimis doctrine is designed for situations where copied material is not readily identifiable in the secondary work. Here, the screenshots were “clearly copied from the original work and wholly recognizable” — viewers could immediately tell they came from Richardson’s videos. The fact that a screenshot captures only one frame does not make the copying de minimis when the image is prominently displayed and directly recognizable.

The Melle Mel Video — YouTube ToS provides a valid license. The one claim the court affirmed was the dismissal of the Melle Mel Video claim. Because that video was posted on YouTube, it was governed by YouTube’s Terms of Service, which grant other users a license to embed content. The court found this license “unambiguously covers” Townsquare’s use.

Key Takeaways

• Reproducing an entire short video in a news article is risky. Even when a news outlet adds some commentary, publishing the complete work — especially with a headline inviting readers to “Watch” — may look more like serving up a substitute than providing transformative commentary.
• Screenshots are not automatically de minimis. The de minimis doctrine protects against claims based on fleeting or unrecognizable copying. When a screenshot is prominently displayed and clearly recognizable as coming from the original, the doctrine offers no shelter.
• YouTube’s ToS licensing remains a viable defense. Content uploaded to YouTube is subject to the platform’s Terms of Service, which license embedding. This defense survived Second Circuit scrutiny — a significant data point for publishers who embed YouTube content.
• Fair use is rarely resolved at the pleading stage. This decision reinforces that fair use is a fact-intensive inquiry that typically requires discovery and a full record before it can be decided.

Why It Matters

This decision matters for every digital publisher and content creator. For news websites and blogs that routinely embed social media posts containing third-party videos, the court’s message is clear: adding a few sentences of commentary around someone else’s video does not automatically make the use fair, especially when you reproduce the entire work and invite readers to consume it. The screenshot ruling is equally important — many publishers assume that a single frame from a video is too small to matter, but the Second Circuit says recognizability, not quantity, is the test. On the flip side, the YouTube ToS ruling provides comfort to publishers who embed YouTube-hosted content: that license remains a solid defense in the Second Circuit.