Full-Video Republishing Is Hard to Dismiss as Fair Use on the Pleadings; Prominent Screenshots Aren’t De Minimis; YouTube TOS License Authorizes Embeds

1. Introduction

In Richardson v. Townsquare Media, Inc. (2d Cir. Apr. 23, 2026), videographer Delray Richardson sued Townsquare Media, Inc., which operates the hip-hop news site XXL, alleging copyright infringement arising from three online articles.

The “Jordan Video”: XXL embedded an X (Twitter) post containing Richardson’s 42-second clip of Michael Jordan breaking up a fight, and used a screenshot of the video as the article’s headline background.
The “Melle Mel Video”: XXL embedded from YouTube an interview excerpt posted on The Art of Dialogue channel in two separate articles, and used two different screenshots as headline backgrounds.

The district court (Hellerstein, J.) granted judgment on the pleadings to Townsquare, holding: (i) the Jordan Video use was fair use; (ii) the screenshots were de minimis; and (iii) embedding the Melle Mel Video was licensed under YouTube’s Terms of Service. The Second Circuit vacated on (i) and (ii), affirmed on (iii), and remanded.

2. Summary of the Opinion

Jordan Video (fair use): The court held it was error to resolve fair use on the pleadings where XXL republished the entire Jordan Video and could plausibly be supplying a market substitute.
Screenshots (de minimis): The court rejected the district court’s view that a single still frame from a longer video is inherently de minimis. Because the screenshots were prominent, recognizable, and used to communicate the articles’ subject matter, the de minimis doctrine did not defeat plausibility of infringement at the pleading stage.
Melle Mel Video (license): The court held YouTube’s Terms of Service unambiguously grant a license permitting other users to embed uploaded content, foreclosing Richardson’s infringement claim based on embedding the YouTube video.

3. Analysis

A. Precedents Cited

1) Pleading-stage posture and the limits of early merits resolution

Vega v. Hempstead Union Free School District and Lynch v. City of New York: Reinforced de novo review and that Rule 12(c) mirrors Rule 12(b)(6).
Lively v. WAFRA Investment Advisory Group, Inc.: Emphasized that dismissal is improper where factual issues could permit a verdict for the non-movant, even if success seems unlikely.
Bell Atlantic Corp. v. Twombly: Anchored the “plausibility” threshold; the court framed fair use at the pleading stage as whether infringement remains plausible after weighing factors on the limited record.
TCA Television Corp. v. McCollum: Provided the key caution that while fair use can sometimes be resolved from the complaint, it typically is addressed at summary judgment; to dismiss, the factors must point “decisively” for the defense based only on permissible materials.
Goel v. Bunge, Ltd. and Global Network Communications, Inc. v. City of New York: Supported considering “integral” documents not attached to the complaint, particularly where omission appears strategic and the document would undermine the claim.
In re Sears Holdings Corp.: Used to deem forfeited an argument raised only in a reply brief.

2) Fair use framework and “substitution” analysis

Campbell v. Acuff-Rose Music, Inc.: Supplied the foundational four-factor approach and the directive to weigh all factors “together” in light of copyright’s purposes.
Cariou v. Prince: Reinforced fair use as open-ended and context-sensitive.
Hachette Book Group, Inc. v. Internet Archive: Informed multiple points: (i) fair use prevents rigid application that stifles creativity; (ii) small/large taking considerations under factor three; and (iii) factor four’s centrality and the “unrestricted and widespread conduct” lens.
Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (Supreme Court): Drove the court’s “purpose” inquiry for transformativeness and warned that merely adding something new is not enough—courts must ask whether the secondary use has a sufficiently distinct purpose and justification for copying.
Romanova v. Amilus Inc.: Provided the Second Circuit’s contemporary gloss: the new purpose must supply justification (e.g., critique/commentary or providing otherwise unavailable information about the copied work).
Barcroft Media, Ltd. v. Coed Media Group, LLC: Cited for the idea that when a work is itself the subject of a story, news reporting can be transformative—though the panel treated this as a “closer call” on the pleaded facts.
Swatch Group Management Services Ltd. v. Bloomberg L.P.: Informed the “commercial nature” subfactor by cautioning that commercial status is not always “commercial exploitation,” especially in news contexts.
Authors Guild, Inc. v. HathiTrust: Used for the principle that transformation requires more than “repackage or republish.”
Authors Guild v. Google, Inc. and Bill Graham Archives v. Dorling Kindersley Ltd.: Supported the contextual, non-arithmetic nature of factor three and that even complete copying can, in some cases, still be fair.
Fox News Network, LLC v. TVEyes, Inc. and Capitol Records, LLC v. ReDigi Inc.: Reinforced factor four’s “market substitution” focus and its relationship to transformation and amount taken.
Brown v. Netflix, Inc. and Lombardo v. Dr. Seuss Enterprises, L.P.: Examples where substitution was implausible (brief excerpt; parody not a substitute), contrasted with full-video republication.
Abbas v. Dixon: Supported the pleading rule that plaintiffs need not anticipate affirmative defenses (here, fair use market-harm theories).
4 Nimmer on Copyright § 13F.08 (2026) and American Geophysical Union v. Texaco Inc.: Addressed “circularity” in defining market harm as “lost licensing” for the very use at bar, limiting relevant markets to traditional/reasonably likely ones.

3) De minimis copying as a substantial-similarity (prima facie) issue

Ringgold v. Black Entertainment Television, Inc.: The centerpiece; clarified de minimis is best understood as failure of a prima facie infringement case and emphasized “observability,” focus, and prominence.
Yurman Design, Inc. v. PAJ, Inc.: Provided the two-part infringement test (actual copying + unlawful copying via substantial similarity to protectible elements).
Sandoval v. New Line Cinema Corp.: Found de minimis where photographs were out of focus/background and not identifiable—illustrating the “unidentifiable/incidental” paradigm.
Eliahu v. Mediaite, LLC: Cited for applying focus/prominence to online media and rejecting “medium-based” avoidance of Ringgold’s analysis.
Gottlieb Development LLC v. Paramount Pictures Corp. and Gayle v. Home Box Office, Inc.: District examples where background/incidental display supported de minimis.
Rogers v. Koons and Hirsch v. CBS Broadcasting Inc.: Used to frame “average lay observer” recognizability and that even brief but clear display may be actionable.

4) Licensing defenses for embedded platform content

Graham v. James: Nonexclusive license waives right to sue licensee for infringement.
Spinelli v. National Football League: License is an affirmative defense with burden on the party claiming it.
Yamashita v. Scholastic Inc.: When license existence is not in question, plaintiff must plausibly allege defendant exceeded its terms.
Farmers Insurance Exchange v. Knopp: California rule against surplusage—used to reject an interpretation that would make YouTube’s embed license meaningless.
MDY Industries, LLC v. Blizzard Entertainment, Inc.: Key distinction between “conditions” limiting scope (breach sounds in copyright) versus “covenants” (breach sounds in contract only).
Sullivan v. Finn, Helzel v. Superior Court, and Antonelle v. Kennedy & Shaw Lumber Co.: California law disfavoring conditions precedent absent clear language.

5) The embedding question left open

Hunley v. Instagram, LLC: Defined embedding mechanics and held embedding does not constitute copying (Ninth Circuit).
Lynk Media, LLC v. Independent Digital News & Media, LLC: Noted SDNY cases going the other way; the panel assumed arguendo embedding could be actionable because Townsquare did not contest it.

B. Legal Reasoning

1) The Jordan Video: why fair use could not be decided on the pleadings

The panel treated fair use as unusually hard to resolve under Rule 12(c) because it is “open-ended and context-sensitive” (Cariou v. Prince) and usually requires a fuller factual record (TCA Television Corp. v. McCollum). The court then identified pleading-stage errors under three factors:

Factor 1 (purpose/character): The district court found transformativeness because XXL used the video in “news reporting” and added context. The Second Circuit agreed the issue was “a closer call,” noting the headline (“—Watch”) and article structure suggested the video itself was the draw and the “commentary” was thin. Critically, the district court failed to address the commercial nature subfactor at all; Townsquare’s for-profit status weighed against fair use, even if not dispositive under Swatch Group Management Services Ltd. v. Bloomberg L.P..
Factor 3 (amount/substantiality): Townsquare republished the entire 42-second video. The court rejected “necessity” arguments based solely on the choice to embed a third party’s post. At the pleading stage, Townsquare could not establish that embedding the full post (and thus copying the entire work) was “reasonable in relation to” the reporting purpose, especially where alternatives (partial excerpt, screenshot, link, or reporting without republication) were plausible.
Factor 4 (market effect): The panel emphasized this factor’s primacy (Hachette Book Group, Inc. v. Internet Archive) and held the district court improperly drew inferences in Townsquare’s favor. On the pleaded facts, a reader could obtain the full viewing experience from XXL, potentially “obviat[ing] the need to seek out (and pay for)” Richardson’s version—making substitution plausible and defeating dismissal. The court also cautioned against circular “lost license” market definitions (citing 4 Nimmer on Copyright § 13F.08 (2026) and American Geophysical Union v. Texaco Inc.), but found it unnecessary to resolve that question given the substitute-work concern.

Net result: even if factor 2 (factual/published nature) leaned toward fair use, the pleadings did not allow a decisive fair-use win where full republication plausibly harms the market.

2) The screenshots: why “de minimis” failed

The court reframed “de minimis” not as a true affirmative defense, but as a failure of the plaintiff’s prima facie infringement showing, following Ringgold v. Black Entertainment Television, Inc.. While a screenshot is “only one frame,” the analysis is not arithmetic; it hinges on:

Observability (identifiability to the “average lay observer”);
Focus and prominence in the secondary work; and
Role in communicating subject matter.

The screenshots here were used as headline backdrops—highly prominent and intended to be recognized. That is the opposite of the “background, out-of-focus, barely discernible” use found de minimis in Sandoval v. New Line Cinema Corp.. The court also noted the statutory backdrop of 17 U.S.C. § 106(5) (exclusive rights in “individual images” of audiovisual works), reinforcing that a “single frame” can be a complete image-use, not an inherently trivial fragment.

The panel declined to affirm on fair use as an alternative ground, stressing the general impropriety of addressing unpassed-upon issues (Absolute Activist Value Master Fund Ltd. v. Ficeto) and reiterating the general unsuitability of fair use determinations on the pleadings.

3) The Melle Mel Video: why YouTube’s Terms of Service defeated the claim

The court affirmed dismissal because YouTube’s Terms of Service granted an unambiguous license permitting embedding:

Uploaders grant YouTube a “sublicensable” license (“License to YouTube”).
Uploaders also grant each other user a license to use content “only as enabled by a feature of the Service (such as video playback or embeds)” (“License to Other Users”).

Procedurally, the Terms could be considered at Rule 12(c) because they were “integral” under Goel v. Bunge, Ltd. and Global Network Communications, Inc. v. City of New York, and Richardson did not meaningfully dispute their applicability or authenticity.

Substantively, the court rejected arguments that other YouTube-related rules (including API terms and policy-style requirements) negated the license. Invoking California principles against surplusage (Farmers Insurance Exchange v. Knopp), it refused to read a “no infringement” clause to erase the explicit embedding license. It further held that alleged noncompliance with ancillary platform rules would, at most, violate covenants enforceable by YouTube—not conditions limiting the copyright license’s scope—drawing on MDY Industries, LLC v. Blizzard Entertainment, Inc. and California law disfavoring conditions precedent (Sullivan v. Finn; Helzel v. Superior Court; Antonelle v. Kennedy & Shaw Lumber Co.).

Importantly, the court emphasized the license ruling applied to embedding the YouTube video, not to XXL’s separate copying of screenshots (which Townsquare did not claim were licensed by the Terms).

C. Impact

1) For publishers and platforms

Full-clip republication in “news” packaging is risky at the pleadings stage: This opinion signals that republishing an entire short viral video in an article—especially where the video is the audience draw—may plausibly be a market substitute, making early fair-use dismissal difficult.
Prominent thumbnails/screenshots are not safely “de minimis”: Using a recognizable still from a video as a headline/background may present straightforward copying, where observability and prominence defeat a de minimis argument.
YouTube embedding is strongly protected by TOS licensing: Where a video is uploaded to YouTube and embedded using YouTube’s enabled features, the uploader’s infringement claim against the embedder will often be foreclosed by the “License to Other Users,” at least absent plausible allegations exceeding license scope.

2) For litigators

Fair use at Rule 12 remains exceptional: The court reaffirmed that dismissal based on fair use requires factors to “point decisively” for the defendant on the complaint’s facts (TCA Television Corp. v. McCollum), and it polices improper inference-drawing under factor four.
De minimis requires observability analysis: Defendants cannot rely on a simplistic “small fraction” argument; plaintiffs can defeat de minimis by pleading prominence, recognizability, and communicative use.
Platform terms can be “integral” even if not attached: If a claim functionally depends on the absence of a platform license, courts may consider the terms at the pleading stage where authenticity/applicability is not genuinely contested.

4. Complex Concepts Simplified

Fair use (17 U.S.C. § 107): A statutory exception allowing certain uses (like commentary or news reporting) without permission. Courts weigh four factors (purpose, nature, amount taken, and market effect) together.
Transformativeness: Whether the new use serves a genuinely different purpose than the original (not merely “repackaging”). After Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the question turns heavily on purpose and substitution risk.
Market substitute (Factor 4): If the defendant’s version can stand in for the original such that consumers no longer need the original, courts see heightened market harm—often the most important fair-use consideration.
De minimis copying: Not “tiny equals okay.” It asks whether the copying is so trivial or unidentifiable that it fails substantial similarity—often hinging on whether the copied work is noticeable, in focus, and prominent.
Embedding: A technical method of displaying content from another platform (like YouTube) on a webpage. The Second Circuit here assumed (without deciding) embedding could be actionable copying, but held the YouTube license authorized it for the Melle Mel Video.
Nonexclusive license; conditions vs. covenants: A nonexclusive license permits use and blocks infringement suits by the licensor. If a term is a “condition” limiting license scope, breaching it can be infringement; if it is a “covenant,” breach is only a contract issue (typically enforceable by the contracting parties).

5. Conclusion

Richardson v. Townsquare Media, Inc. establishes three practical guideposts in digital copyright disputes: (1) republishing an entire short video inside a news article is not easily dismissed as fair use on the pleadings where substitution is plausible; (2) prominently displayed, recognizable screenshots are not de minimis merely because they are “one frame” from a longer video; and (3) embedding a YouTube-posted video is generally licensed by YouTube’s Terms of Service, and alleged violations of other platform rules typically do not narrow that copyright license absent clear “condition” language.