Richardson v. Townsquare Media, Inc.

Background

Delray Richardson, described in the opinion as a professional videographer, brought a copyright-infringement action against Townsquare Media, Inc., the owner of the online publication XXL. Richardson alleged that Townsquare posted or embedded two copyrighted videos on XXL’s website.

The first video, created by Richardson in May 2015, showed former professional basketball player Michael Jordan stopping one person from fighting another. After DailyLoud posted the video on X.com on July 23, 2023, Townsquare published an XXL article about that post. The article described the video, included one screenshot, embedded DailyLoud’s X post containing the video, and discussed speculation about whether YouTuber Charleston White was involved, along with his denial of that accusation.

The second video showed rapper Melvin Glover, also known as Melle Mel, being interviewed by Richardson. The video included racially disparaging comments about rapper Eminem. Richardson’s predecessor in interest, The Art of Dialogue, posted the video on YouTube on March 2, 2023. Townsquare published an XXL article about it the next day and a follow-up article on March 5, 2023. Both articles embedded the YouTube video and included a screenshot. The opinion states that Richardson later acquired the rights through a written assignment.

Townsquare moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). A judgment-on-the-pleadings motion asks the court to decide the case from the pleadings and materials the court may consider when no material factual issue remains and the moving party is entitled to judgment as a matter of law. The court applied the same standard used for a motion to dismiss, accepting the complaint’s factual allegations as true and drawing reasonable inferences for Richardson.

Court’s Analysis

The court stated that copyright infringement requires proof of ownership of a valid copyright and copying of original parts of the work. It found no dispute that Townsquare used Richardson’s validly copyrighted videos without authorization, so Richardson established an initial copyright-infringement case. The court then considered Townsquare’s asserted defenses.

Jordan video and fair use

The court held that Townsquare’s use of the Jordan video was fair use. Fair use is a copyright doctrine that can permit certain unauthorized uses, including qualifying news reporting. The court considered the four statutory factors.

First, the purpose and character of the use favored fair use because the video was the subject of the news story, and the article added information and context about the video and the people possibly involved in the events shown. Second, the nature of the work favored fair use because the video had already been published online and depicted factual and newsworthy events.

Third, although Townsquare copied the entire video, the court found that copying the entire video was necessary in this setting. Townsquare embedded the DailyLoud X post containing the complete video and could not reasonably have copied only part of it in that format. The court also found that the complete video was needed to report the events accurately.

Fourth, the court found little or no risk that the article would replace the market for the original video. The video appeared within an embedded social-media post alongside other text and images, and the article served a different purpose from the original video. The court therefore held that Townsquare’s article embedding the Jordan video was fair use and granted the motion as to that video.

Melle Mel video and YouTube sublicense

For the Melle Mel video, Townsquare relied on a license defense. The court took judicial notice of YouTube’s publicly available Terms of Service. Those terms granted YouTube a broad license to use uploaded content and granted other YouTube users a sublicense to use the content through YouTube features, including video embeds.

The court held that when The Art of Dialogue uploaded the Melle Mel video, it granted YouTube the license and granted YouTube users, including Townsquare, a sublicense to use the video through an embed. Because Townsquare had a sublicense to embed the video, the court held that Richardson’s copyright claim concerning the Melle Mel video could not stand.

Screenshots

The court separately addressed the single-frame screenshots from both videos. It explained that copying is not actionable when it is so minor that it falls below the required level of substantial similarity. The court held that each single-frame screenshot represented a very small portion of its video and was a de minimis, or legally insignificant, use. Richardson therefore failed to state a copyright-infringement claim based on the screenshots.

Disposition

The court granted Townsquare’s motion for judgment on the pleadings, dismissing the Complaint, and directed the Clerk to terminate the motion and close the case. The court also ruled that Townsquare was entitled to reasonable attorney’s fees and costs under 17 U.S.C. § 505, with the exception of attorney’s fees and costs related to defamation. Townsquare could prove the recoverable fees and costs.