25-291 Richardson v. Townsquare Media, Inc.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2025
(Argued: December 10, 2025 Decided: April 23, 2026)
Docket No. 25-291-cv
DELRAY RICHARDSON,
Plaintiff-Appellant,
— v. —
TOWNSQUARE MEDIA, INC.,
Defendant-Appellee.
B e f o r e:
LYNCH, NARDINI, and MENASHI, Circuit Judges.
__________________
Plaintiff Delray Richardson appeals a judgment dismissing his copyright infringement claims on the pleadings. Richardson sued Townsquare Media, Inc. (“Townsquare”) after it reproduced videos he created on a hip-hop news website it operates. First, Townsquare reproduced a video Richardson had recorded of basketball legend Michael Jordan breaking up a fight (the “Jordan Video”) in an article that speculated about the identity of an individual who may have been involved in the incident. Second, Townsquare, in two separate articles, embedded from YouTube an interview Richardson had conducted with the rapper Melle Mel in which Melle Mel criticized rapper Eminem (the “Melle Mel Video”). And in each of those three articles, Townsquare included a screenshot from the relevant video in the article’s headline. The district court (Alvin K. Hellerstein, J.) granted Townsquare judgment on the pleadings. We disagree in part and agree in part. First, the district court incorrectly determined, at the pleading stage, that Townsquare’s use of the Jordan Video was fair. Because Townsquare republished the entire Jordan Video, it potentially provided consumers with a substitute work that obviated the need to seek out (and pay for) the video from Richardson. Second, the district court erroneously applied the de minimis doctrine to Townsquare’s use of the screenshots from the Jordan and Melle Mel Videos. The doctrine does not apply in cases like this where the secondary use is clearly copied from the original work and is wholly recognizable. But, third, the district court correctly determined that Richardson’s claim as to the Melle Mel Video was foreclosed by the license granted by YouTube’s Terms of Service. That license unambiguously covers Townsquare’s use. Accordingly, we VACATE the district court’s judgment as to Townsquare’s use of the Jordan Video and the screenshots from both videos, AFFIRM the district court’s judgment as to Townsquare’s use of the Melle Mel Video, and REMAND for further proceedings consistent with this opinion.
CRAIG B. SANDERS, Sanders Law Group, Uniondale, NY, for Plaintiff- Appellant.
ABIGAIL B. EVERDELL, Davis Wright Tremaine LLP, New York, NY (Celyra I. Myers, Davis Wright Tremaine LLP, Washington, DC, and Rachel F. Strom, Davis Wright Tremaine LLP, New York, NY, on the brief), for Defendant-Appellee.
2 GERARD E. LYNCH, Circuit Judge:
Over a decade ago, videographer Delray Richardson recorded a seemingly
chance encounter: basketball legend Michael Jordan breaking up a fight. That
video (the “Jordan Video”) received renewed interest in 2023 when a social
media account republished it in a post claiming that the altercation involved a
prominent social media personality. Townsquare Media, Inc. (“Townsquare”)
republished that post, which also contained the video, in a short article on its hip-
hop news website.
That was not the only material created by Richardson that Townsquare
reproduced. Richardson had also recorded an interview with rapper Melle Mel in
which Melle Mel criticized rapper Eminem (the “Melle Mel Video”). After that
video was posted on YouTube, Townsquare embedded it in two news stories: the
first on Melle Mel’s comments themselves and the second on rapper 50 Cent’s
response defending Eminem. In each of the three articles Townsquare published
— the Jordan article and the two Melle Mel articles — it included a screenshot
from the relevant video in the article’s headline.
Richardson sued, claiming that Townsquare’s use of his content violated
his copyrights. The district court (Alvin K. Hellerstein, J.) disagreed, granting
3 Townsquare judgment on the pleadings. It concluded that Townsquare’s use of
the Jordan Video was fair, that its reproduction of the screenshots was de minimis
and therefore not actionable, and that its embedding of the Melle Mel Video was
permissible under the license provided by YouTube’s Terms of Service. We
disagree in part and agree in part.
First, the district court incorrectly determined, at the pleading stage, that
Townsquare’s use of the Jordan Video was fair. Because Townsquare republished
the entire video, it potentially provided consumers with a substitute work that
obviated the need to seek out (and pay for) the video from Richardson,
precluding a finding of fair use on the pleadings alone.
Second, the district court erroneously applied the de minimis doctrine to
Townsquare’s use of the screenshots from the Jordan and Melle Mel Videos. The
de minimis doctrine is typically implicated where a work’s copying is not readily
identifiable in a secondary work, and, as a result, the two works lack substantial
similarity. The doctrine does not apply in a case like this, where the original work
is wholly recognizable in the secondary work.
But, third, the district court correctly found Richardson’s claim as to the
Melle Mel Video foreclosed by the licensing grant in YouTube’s Terms of Service.
4 That license unambiguously covers Townsquare’s use.
BACKGROUND
Plaintiff-Appellant Richardson is a professional videographer.1 Defendant-
Appellee Townsquare operates XXL, an online hip-hop news publication. On
three occasions relevant to this appeal, XXL included Richardson’s content in its
articles.
The Jordan Video. In May 2015, Richardson recorded and published the
Jordan Video. The Jordan Video is only forty-two seconds long, and its footage is
grainy. But it captures an unexpected event: famous athlete Michael Jordan
breaking up a fight between two individuals — according to Richardson, a “gang
member” and one of Jordan’s bodyguards, App’x 7 ¶ 2 — and then walking
away to his car.
While the Jordan Video appears to have attracted little attention in the
eight years after it was first published, it received a new life in July 2023 when
the DailyLoud, a hip-hop blog, shared the full video on the social media platform
1 As Richardson appeals the district court’s judgment on the pleadings under Federal Rule of Civil Procedure 12(c), this background section is based on the allegations in Richardson’s complaint and the documents attached thereto or that, though not attached or incorporated by reference, are “integral” to the complaint. Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016).
5 X. The DailyLoud’s accompanying post claimed that the video actually showed
Jordan breaking up a fight between rapper Wack 100 (the “gang member” in
Richardson’s telling) and YouTube personality Charleston White, who according
to the DailyLoud was standing outside the camera frame. Following the
DailyLoud’s post, White responded on social media, denying that he was a part
of the fight, or even present at the scene.
Townsquare apparently found the exchange newsworthy and published
an article on XXL addressing the Jordan Video, headlined “Michael Jordan
Intervenes in Heated Confrontation Involving Wack 100 in Viral Video from 2015
— Watch.” That article embedded the DailyLoud’s X post, including its
republication of the entire Jordan Video.2 The article also used a screenshot (i.e., a
2 “Embedding is a method that allows a third-party website . . . to incorporate content directly from the website where it originally appeared.” Hunley v. Instagram, LLC, 73 F.4th 1060, 1062 (9th Cir. 2023). News websites often republish social media posts by way of embedding. When a website embeds a social media post, the website “appears to the user to have included the [post] in its content,” when, “[i]n reality, the embedding website has directed the reader’s browser to retrieve the public [social media] account and juxtapose it on the embedding website.” Id. at 1064. As part of this process, “the embedding website does not store a copy of the underlying” content, but instead pulls the content from the social media platform’s server. Id. at 1064–65. Courts have reached different conclusions as to whether publication via embedding constitutes the making of a copy under the Copyright Act and thus whether it can give rise to a claim for infringement (an issue our Court has not
6 still image) from the Jordan Video as the background for its headline. That
screenshot shows Jordan towering over the person claimed to be Wack 100 to his
right and using his right arm to restrain that person from moving toward
Jordan’s left; it could plausibly be inferred that Jordan was keeping that person
away from someone standing to Jordan’s left outside the frame of the image.
The Melle Mel Video. Several years later, Richardson, along with an entity
known as The Art of Dialogue, recorded an interview with rapper Grandmaster
Melle Mel. On March 2, 2023, The Art of Dialogue posted on YouTube a three-
minute excerpt from the interview entitled “Eminem Being White Is The Reason
He’s A Top 5 Rapper Of All Time. If He Were Black, He’d Be Average!” (the
“Melle Mel Video”).3 The next day, Townsquare published an article on XXL
yet addressed). Compare Hunley, 73 F.4th at 1062 (holding that embedding does not constitute copying), with Lynk Media, LLC v. Independent Digital News & Media, LLC, No. 24-cv-583, 2025 WL 2771625, at *9 n.6 (S.D.N.Y. Sept. 29, 2025) (identifying decisions from district courts in our Circuit that have held embedding to constitute copying). But Townsquare does not “take[] a position on this issue, and instead assume[s] arguendo that its embedding d[oes] constitute actionable use.” Appellee’s Br. 15. We therefore have no occasion to resolve the issue and similarly assume, for the purposes of this appeal, that embedding constitutes actionable use. 3 Richardson does not specifically allege that he published the Melle Mel Video on YouTube; instead, he generically alleges that the Melle Mel Video was “published.” App’x 9 ¶ 18. However, the XXL articles that he attaches to his
7 covering the release of the Melle Mel Video. As part of its reporting, Townsquare
embedded the video from The Art of Dialogue’s YouTube channel. The
background for the article’s heading was a screenshot from the video of Melle
Mel sitting juxtaposed with a photograph of Eminem.
Two days later, Townsquare published a follow-up story on rapper 50
Cent’s defense of Eminem following Melle Mel’s comments. That second article
also embedded the Melle Mel Video from YouTube and, as the background for its
headline, included a different screenshot of Melle Mel from the video, this time
placed next to a photograph of 50 Cent.
Richardson sued Townsquare for copyright infringement based on its
publication of the Jordan Video, the Melle Mel Video, and screenshots from both
videos. Townsquare raised several defenses in its answer and subsequent motion
for judgment on the pleadings, including that its use of the Jordan Video was fair;
that it published the Melle Mel Video pursuant to a valid license contained in the
YouTube Terms of Service; and that its use of the screenshots was de minimis and
therefore not actionable. The district court granted Townsquare’s motion in full,
complaint and that he claims infringed upon the Melle Mel Video refer to the video as having been published on The Art of Dialogue’s YouTube channel. Richardson nowhere disputes the accuracy of that statement.
8 and Richardson appealed.
DISCUSSION
I. Standard of Review
“We review de novo a district court’s decision to grant a motion for
judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).”
Vega v. Hempstead Union Free School District, 801 F.3d 72, 78 (2d Cir. 2015). “The
standard for granting a Rule 12(c) motion for judgment on the pleadings is
identical to that for granting a Rule 12(b)(6) motion for failure to state a claim.”
Lynch v. City of New York, 952 F.3d 67, 75 (2d Cir. 2020) (internal quotation marks
omitted and alteration incorporated). We therefore “draw all reasonable
inferences in the plaintiff’s favor” and must vacate the district court’s judgment
“if there are issues of fact which if proved would [permit a verdict for the non-
moving party], even if the trial court is convinced that the party opposing the
motion is unlikely to prevail at trial.” Lively v. WAFRA Investment Advisory Group,
Inc., 6 F.4th 293, 301 (2d Cir. 2021) (internal quotation marks omitted).
II. The Jordan Video
The district court granted judgment on the pleadings for Townsquare on
the use of the Jordan Video, as the court concluded that the use was fair. Under
9 the Copyright Act, “the fair use of a copyrighted work . . . for purposes such as
criticism, comment, [or] news reporting . . . is not an infringement of copyright.”
17 U.S.C. § 107. Fair use “thus excuses what might otherwise be considered
infringing behavior, allowing courts to avoid rigid application of the Copyright
Act when it would stifle the very creativity the Act is meant to promote.” Hachette
Book Group, Inc. v. Internet Archive, 115 F.4th 163, 179 (2d Cir. 2024) (internal
quotation marks omitted). To assess fair use, we consider four non-exclusive
statutory factors: (1) “the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit educational purposes”;
(2) “the nature of the copyrighted work”; (3) “the amount and substantiality of
the portion used in relation to the copyrighted work as a whole”; and (4) “the
effect of the use upon the potential market for or value of the copyrighted work.”
17 U.S.C. § 107. While courts typically discuss each factor individually, they must
“[a]ll . . . be explored, and the results weighed together, in light of the purposes
of copyright.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994).
Because the determination of fair use “is an open-ended and
context-sensitive inquiry,” Cariou v. Prince, 714 F.3d 694, 705 (2d Cir. 2013),
“[c]ourts most frequently address a proffered fair use defense at summary
10 judgment,” TCA Television Corp. v. McCollum, 839 F.3d 168, 178 (2d Cir. 2016).
That rule is not absolute, and we have “acknowledged the possibility of fair use
being so clearly established by a complaint as to support dismissal of a copyright
infringement claim.” Id. 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. That
analysis must be based on the facts pled in the plaintiff’s complaint, fully
crediting the accuracy of those facts and drawing every reasonable inference
from those facts in the plaintiff’s favor. For the complaint to survive dismissal,
we need not conclude that the fair-use factors require a rejection of the fair-use
defense; it is sufficient that the plaintiff’s infringement claim remains “plausible”
after those factors are weighed based on the limited materials we can consider at
the pleading stage. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Here, we disagree with the district court’s dismissal on the pleadings,
based on fair use, of Richardson’s claim concerning the Jordan Video. As
explained below, the district court erred in assessing the first, third, and fourth
statutory fair-use factors. A correct evaluation of those factors demonstrates that
the defense is not warranted at the pleading stage in this case.
11 A. The Purpose and Character of Use
The first factor considers “the purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit educational
purposes.” 17 U.S.C. § 107(1). Accordingly, in assessing this factor, “courts
consider two sub-factors: (i) the extent to which the secondary use is
transformative and (ii) whether the secondary use is commercial in nature.”
Hachette, 115 F.4th at 179. We consider each sub-factor below.
1. Transformativeness
A secondary use is “transformative” where it does not “merely supplant[]
the original,” but “‘instead adds something new, with a further purpose or
different character, altering the original with new expression, meaning, or
message.’” Id. (alteration incorporated), quoting Campbell, 510 U.S. at 579. We
typically frame the inquiry in terms of “substitution”: A secondary use will not
be transformative where it merely offers a substitute for the original work.
Instead, a use may be transformative where it was made for and objectively
realizes a purpose distinct from that of the original work. Andy Warhol Foundation
for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 528, 545 (2023). In addition, that
new purpose must supply a sufficient “justification for copying,” such as
12 providing a “critique or commentary on the original” or supplying “information
to the public about the copied work” that is not otherwise available. Romanova v.
Amilus Inc., 138 F.4th 104, 115 (2d Cir. 2025). As “[m]ost copying has some further
purpose” and “[m]any secondary works add something new,” the inquiry will
not always be “clear cut.” Warhol, 598 U.S. at 528–29. We therefore assess
transformativeness as a “matter of degree” and weigh it “against other
considerations, like commercialism.” Id. at 525.
The district court determined that the first factor supported fair use
because Townsquare’s use of the Jordan Video was transformative. Because
Townsquare republished the video as part of “a news report[] where ‘the [video
was] itself the subject of the story,’” the district court ruled, the “purpose and
character” of its use was different from that of Richardson’s initial publication.
App’x 126, quoting Barcroft Media, Ltd. v. Coed Media Group, LLC, 297 F. Supp. 3d
339, 352 (S.D.N.Y. 2017). The court observed that Townsquare’s article “added
new information and context” to the video, namely the “speculation” about
Charleston White’s involvement in the incident and White’s denial “in response.”
Id. at 126–27.
A review of Townsquare’s article, however, indicates that the question of
13 transformativeness is a closer call than the district court’s analysis suggests.
While, at a general level, Townsquare republished the Jordan Video in a news
article describing a controversy surrounding the video, Townsquare’s reporting
at times appears more focused on the mere existence and presentation of the
video itself. No place is that more evident than in the article’s headline. Instead of
referring to any of the article’s commentary, the headline presents the video as the
article’s primary draw: “Michael Jordan Intervenes in Heated Confrontation
Involving Wack 100 in Viral Video from 2015 —Watch.” Id. at 52. The article then
opens by explaining that the DailyLoud had posted the video on X just one day
prior. That is the extent of the article’s discussion of the video’s online circulation.
It moves on to describe the incident depicted in the video, but that portion of the
article simply describes what viewers of the video can see for themselves. Only at
the end does the article discuss the possible presence of Charleston White off-
screen and his denial of any involvement in the fight.
By offering some modicum of commentary about the video, the article’s
copying arguably “communicate[d] a message that differ[ed] from the message
of the” video itself, which was to document the fight. Romanova, 138 F.4th at
118–19. At the same time, there is a difference between gesturing towards a
14 transformative message and actually communicating that message. Here,
Townsquare’s commentary was limited to a few sentences explaining that a third
party had republished the video and opined that an individual who does not
appear in it was Charleston White. Notably, the article does not identify anything
in the video that would corroborate that speculation for the viewer; instead it
relies on the unexplained say-so of the DailyLoud’s post. It is therefore debatable
whether the article meaningfully communicated any new commentary about the
video (which could justify its copying) or instead merely summarized
commentary about the fight depicted and relied on the video solely as an
illustrative aid (in which case the copying served little transformative function).
“A use is transformative if it does something more than repackage or republish
the original copyrighted work.” Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 96
(2d Cir. 2014). But in this case, the video was reproduced without modification
and with minimal integration into the accompanying news article, which
suggests that the video may have retained its original purpose and character in
the new packaging of Townsquare’s website.
Ultimately, however, we need not reach any definitive conclusion as to the
precise degree of the article’s transformativeness, because even if it were
15 sufficiently transformative to weigh in favor of fair use, other factors described
below militating against fair use would strongly outweigh whatever
transformative value could be attributed to Townsquare’s use of the Jordan
Video.
2. Commercial Nature
Under the first fair-use factor, we also consider the secondary use’s
“commercial nature.” Warhol, 598 U.S. at 532. The district court erred by failing to
address this sub-factor. It is undisputed that Townsquare is a for-profit entity, a
fact that weighs against fair use. At the same time, “we have recognized that
almost all newspapers, books and magazines are published by commercial
enterprises that seek a profit and have discounted this consideration where the
link between the defendant’s commercial gain and its copying is attenuated such
that it would be misleading to characterize the use as a commercial exploitation.”
Swatch Group Management Services Ltd. v. Bloomberg L.P., 756 F.3d 73, 83 (2d Cir.
2014) (internal quotation marks and citations omitted and alterations
incorporated). Townsquare ran advertising alongside its embedded depiction of
the Jordan Video, but classic legacy news media such as newspapers, news
magazines, and commercial television stations did, and do, the same. On a full
16 factual record, it might prove to be “misleading to characterize [Townsquare’s]
use [of the Jordan Video] as commercial exploitation.” Id. (internal quotation
marks omitted). Nonetheless, at the pleading stage, this sub-factor cannot count
in favor of Townsquare’s fair-use defense.
***
Our assessment of the first factor is, at best, neutral in the fair-use analysis.
Even if Townsquare’s limited showing of transformativeness weighs in favor of
fair use, that weight is offset by Townsquare’s commercial status.
B. Nature of the Copyrighted Work
The second statutory factor considers “the nature of the copyrighted
work,” 17 U.S.C. § 107(2), in recognition of the fact that “some works are closer to
the core of intended copyright protection than others,” Campbell, 510 U.S. at 586.
We ask whether the copyrighted work is more “expressive” or “factual,” as fair
use is more likely to be found where the work is “factual or informational.” Andy
Warhol Foundation for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26, 45 (2d Cir. 2021)
(internal quotation marks omitted). We also ask whether the copyrighted work
has been previously published, because “the scope of fair use involving
unpublished works” is far more limited. Id. (internal quotation marks omitted).
17 This factor plays a minimal role in the fair-use assessment. Hachette, 115 F.4th at
187.
Here, the district court concluded that this factor weighed in favor of fair
use, because “[t]he original Jordan video was published online and depicted
factual and newsworthy events.” App’x 127. We agree. The Jordan Video was
largely factual, and, as Richardson concedes, did not involve meaningful creative
choices. That Richardson was fortunate to be in the right place at the right time to
record Jordan’s unexpected intervention does not make the work creative. Other
courts have similarly found that this factor weighed in favor of fair use where the
copyrighted work was “merely a candid shot in a public setting.” Katz v. Google
Inc., 802 F.3d 1178, 1183 (11th Cir. 2015); see also, e.g., Los Angeles News Service v.
CBS Broadcasting, Inc., 305 F.3d 924, 940 (9th Cir. 2002). Thus, this factor, though
of limited import, weighs in favor of fair use.
C. The Amount and Substantiality of Use
The third statutory factor asks “whether ‘the quantity and value of the
materials used are reasonable in relation to the purpose of the copying.’” Warhol,
11 F.4th at 46, quoting Campbell, 510 U.S. at 586. “Generally, a finding of fair use is
more likely when ‘small amounts, or less important passages of the work are
18 copied than when the copying is extensive, or encompasses the most important
parts of the original.’” Hachette, 115 F.4th at 187 (alteration incorporated), quoting
Authors Guild v. Google, Inc., 804 F.3d 202, 221 (2d Cir. 2015). But the inquiry
remains context-specific, and a fair-use defense may be available even where a
secondary work uses the entirety of the original. See Bill Graham Archives v.
Dorling Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006). Moreover, the factor is not
susceptible to determination purely by an arithmetical calculation of the
percentage of the work that is used. Where the work itself is large, copying a
small percentage of the work could nonetheless, in some circumstances,
constitute a substantial taking, while in the case of a work that is small in size or
duration, a transformative purpose might be hard to serve by a mere excerpt.
Here, Townsquare concedes that it republished the entirety of the Jordan
Video but contends that such use was “necessary,” an assessment with which the
district court agreed. Appellee’s Br. 38, quoting App’x 128. Townsquare’s
arguments in support, however, are premature and underdeveloped at the
pleading stage. It first argues that it could not reasonably publish only a portion
of the video because it embedded the DailyLoud’s X post which featured the
entire video. But that argument takes as a foregone conclusion that Townsquare
19 had no reasonable alternative but to embed the post; there is no reason to think
that was the case. Townsquare could have, for example, republished the text of
the post along with a portion of the video. Or it could have taken a screenshot of
the post with a still of the video (as Townsquare did for the article’s headline).4
Or it could have simply reported on the controversy and included a hyperlink to
the post, forgoing any reproduction of the video. While embedding the post may
have been more expedient for Townsquare, nothing compels a conclusion (and
certainly not at this stage) that embedding the post and, with it, the entire video
was reasonable in relation to Townsquare’s limited news reporting.
Townsquare’s related argument that republishing the entire Jordan Video
was necessary to convey information to the public accurately is similarly
unpersuasive. For one, Townsquare identifies in its briefing no information that it
could communicate accurately only by republishing the video in full. At oral
argument, Townsquare maintained that the full video allowed viewers to
speculate as to whether Charleston White was in fact involved in the fight despite
his denial. But that argument is entirely unpersuasive, as the second person
4 We do not suggest that had Townsquare followed either of these alternatives, the third factor would necessarily weigh in its favor. We include them only to illustrate the erroneous assumption underlying Townsquare’s argument.
20 involved in the altercation (whoever that person might have been) never appears
in the video, but rather remains off-camera throughout. Townsquare also
contended at oral argument that embedding the entire post was necessary to
capture the aspects of the video related to its publication on social media,
including comments from other users who viewed the video and expressed
opinions about whether White was involved in the incident. But again, there is
no reason why that is so. Townsquare could have “conveyed the [v]ideo’s
virality,” for example, “by providing a screenshot of the number of likes or views
the [v]ideo received,” Nicklen v. Sinclair Broadcast Group, Inc., 551 F. Supp. 3d 188,
198 (S.D.N.Y. 2021), or by simply reporting those numbers. And it could have
republished certain comments to characterize the tenor of public opinion.
Perhaps discovery may offer further editorial or technological justification for
Townsquare’s decision to use the entirety of the video. But at present, the facts
pled do not demonstrate, as a matter of law, that such use was reasonable in
relationship to Townsquare’s reporting purposes.
D. Effect on Potential Market for the Copyrighted Work
The final statutory factor addresses “the effect of the use upon the potential
market for or value of the copyrighted work.” 17 U.S.C. § 107(4). Our cases have
21 repeatedly recognized this factor as the most important. See, e.g., Hachette, 115
F.4th at 189; Authors Guild, 804 F.3d at 214. We consider primarily whether the
secondary work “usurps the market for the first [work] by offering a competing
substitute.” Warhol, 11 F.4th at 48 (emphasis in original). In doing so, we weigh
“not only the market harm caused by the particular actions of the alleged
infringer, but also the market harm that would result from unrestricted and
widespread conduct of the same sort.” Hachette, 115 F.4th at 189, quoting Fox
News Network, LLC v. TVEyes, Inc., 883 F.3d 169, 179 (2d Cir. 2018). This factor
subsumes much of the content of the other factors, whose force lies in evidencing
the market effect of the use. For example, it relates to the third factor, because
“the greater the amount and substantiality of the use, ‘the greater the likelihood
that the secondary work might serve as an effectively competing substitute for
the original.’” Id. at 187–88, quoting Authors Guild, 804 F.3d at 221. And, as
relevant to the first factor, the more transformative a secondary use is, the less
likely it is to serve as a mere substitute for the original. Capitol Records, LLC v.
ReDigi Inc., 910 F.3d 649, 662 (2d Cir. 2018).
The district court erred in concluding that the factor supported fair use at
the pleading stage, as its reasoning was based on a factually unfounded and
22 legally impermissible inference in Townsquare’s favor. According to the district
court, it was implausible that Townsquare’s article would compete with the
market for the Jordan Video because the article had surrounded the video with
reporting and “potential purchasers of the original work are unlikely to ‘find
reviewing the news article an adequate substitute.’” App’x 128, quoting Nicklen,
551 F. Supp. 3d at 198. We acknowledge that Richardson’s complaint is not
entirely clear about what the market for the Jordan Video is.5 Nonetheless, it is
plausible that viewers may not need to pay Richardson to watch the Jordan
5 Townsquare attempts to burden Richardson with “articulat[ing] a legally cognizable theory of market harm.” Appellee’s Br. 45. But of course, we “have unequivocally placed the burden of proof on the proponent of” the fair-use defense. Warhol, 11 F.4th at 49 (internal quotation marks omitted). And while some of “our prior cases have suggested that the rightsholder bears some initial burden of identifying relevant markets,” those cases did so at summary judgment. Id. at 49 & n.11, citing Authors Guild, 755 F.3d at 96 and Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 116 n.6 (2d Cir. 1998). At the pleading stage, a plaintiff need not identify the relevant markets in anticipation of a defendant’s fair-use defense. That is a corollary of the general rule that “[t]he pleading requirements in the Federal Rules . . . do not compel a litigant to anticipate potential affirmative defenses . . . and to affirmatively plead facts in avoidance of such defenses.” Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007). At any rate, the issue is not whether the complaint was somehow deficient in failing to explicate the nature of the market for the Jordan Video. Rather, it is that Townsquare cannot decisively demonstrate the absence of an effect of its use of the Jordan Video on the market for the original video based on the allegations in a complaint that say little or nothing about the nature of that market.
23 Video a second time if they are able to see it in full on Townsquare’s website or
on another website that republished the DailyLoud’s X post. It is entirely unclear
that a viewer of Townsquare’s story would gain anything from watching a
version of the Jordan Video unencumbered by Townsquare’s reporting,
advertising, and the X post text and border. And if viewers are unlikely to gain
anything, they would have little reason to seek out the Jordan Video from
Richardson. And without viewers, Richardson would experience market harm
either by lost advertising revenue (if, like Townsquare, he had published the
video online) or lost rental or purchase revenue (if he provided the video directly
24 to consumers).6 These are inferences we are required to make in Richardson’s
favor.
The “burden” of demonstrating “that the secondary use does not compete
in the relevant market” is a significant hurdle for a defendant to clear prior to
discovery. Warhol, 11 F.4th at 49. It is therefore no surprise that we have typically
found this factor satisfied at the pleading stage only when it was clear that the
two works were not substitutes. In Brown, for example, we considered the
defendant’s use in its documentary film of an eight-second excerpt of a three-
minute song. Brown v. Netflix, Inc., 855 F. App’x 61, 63–64 (2d Cir. 2021)
6 Richardson separately argues that if Townsquare’s use of the Jordan Video were widespread, he would suffer harm from lost licensing revenue from Townsquare and other media companies that republished the DailyLoud’s post. But “it is always a given that [a] plaintiff suffers a loss of some potential [licensing] market if that potential is defined as the theoretical market for licensing the very use at bar.” 4 Nimmer on Copyright § 13F.08 (2026) (footnote omitted and emphasis in original). Accordingly, to avoid this “danger of circularity,” id., we have limited our consideration of lost licensing revenue under the fourth fair-use factor to include only “traditional, reasonable, or likely to be developed markets,” American Geophysical Union v. Texaco Inc., 60 F.3d 913, 929–30 (2d Cir. 1994). The question of lost licensing revenue is thus bound up in the issue of transformativeness; where a secondary use is transformative, the use is unlikely to fall into a “traditional” or “likely to be developed” licensing market. Because, as explained above, the issue of transformativeness is a close call here and it is otherwise clear that the fourth statutory factor weighs against fair use, we need not definitively decide whether Richardson’s assertion of lost licensing revenue also may be factored into the fair-use assessment.
25 (summary order). Given how brief the excerpt was, we concluded that “the
intended audience for the [original song] would be unlikely to purchase [the
documentary film] in preference to the original.” Id. at 64 (internal quotation
marks omitted). Likewise, we decided in Lombardo that a parody of Dr. Seuss’s
How the Grinch Stole Christmas “mock[ing] the naïve, happy world of the Whos”
did not offer a market substitute for the original book. Lombardo v. Dr. Seuss
Enterprises, L.P., 729 F. App’x 131, 132–33 (2d Cir. 2018) (summary order). Here,
because Townsquare has not shown that its use of the Jordan Video is not a
market substitute for the Jordan Video itself, the fourth statutory factor weighs
against fair use.
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. That choice rendered its use of the video a
plausible market substitute for the video itself. Discovery may further explicate
the relevant market factors, and thus demonstrate that Townsquare’s use of the
full video was reasonably justified or that customers interested in watching the
26 video would still seek out the original to avoid the article’s text and advertising.
That, however, is not apparent at this early point in the litigation.
III. The Jordan and Melle Mel Screenshots
The district court concluded that Townsquare was entitled to use
screenshots from the Jordan and Melle Mel Videos under the de minimis doctrine.
Once again, we disagree with the district court’s conclusion. The de minimis
doctrine has no application here, as Townsquare prominently displayed the
screenshots as the backdrop to the headline in each article.
While the district court and the parties refer to the de minimis doctrine at
various points as a defense, we have noted that the doctrine is not a special case
of “fair use” or some other defense, but is more accurately treated as an example
of a plaintiff’s failure to present a prima facie case of infringement. Ringgold v.
Black Entertainment Television, Inc., 126 F.3d 70, 75–76 (2d Cir. 1997). “To establish
infringement, the copyright owner must demonstrate that (1) the defendant has
actually copied the plaintiff’s work; and (2) the copying is illegal because a
substantial similarity exists between the defendant’s work and the protectible
elements of plaintiff’s.” Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 110 (2d Cir.
2001) (internal quotation marks omitted and emphasis in original). Here, the first
27 element is clearly alleged. By taking screenshots, Townsquare made literal copies
of video “frames” and incorporated those copies into its articles.
As for the second element, substantial similarity has both a qualitative and
a quantitative component. “The qualitative component concerns the copying of
expression, rather than ideas,” while “[t]he quantitative component generally
concerns the amount of the copyrighted work that is copied.” Ringgold, 126 F.3d
at 75. While the term “de minimis” might ostensibly suggest a quantitative focus,
and thus imply, as the district court appears to have believed, that copying a
single frame capturing a split-second image from a longer video would
inherently qualify for such a doctrine, the doctrine in reality is more complex. In
evaluating whether use is de minimis, we have instructed courts to look at “the
amount of the copyrighted work that was copied, as well as[] (in cases involving
visual works)[] the observability of the copyrighted work in the allegedly
infringing work.” Sandoval v. New Line Cinema Corp., 147 F.3d 215, 217 (2d Cir.
1998). “Observability, in turn, includes review of the ‘focus’ and ‘prominence’ of
copyrighted material in the allegedly infringing work.” Eliahu v. Mediaite, LLC,
No. 23-cv-11015, 2024 WL 4266323, at *3 (S.D.N.Y. Sept. 23, 2024), quoting
Ringgold, 126 F.3d at 75.
28 Applying that standard, we have typically found de minimis use where the
defendant’s inclusion of the copyrighted work was incidental or unidentifiable in
the secondary work. In Sandoval, for example, we considered the use of the
plaintiff’s photographs in David Fincher’s crime thriller Seven. The photographs
appear in one scene as “transparencies affixed to [a] light box” in an apartment
belonging to the murder suspect. 147 F.3d at 216. The photographs “never appear
in focus,” and are primarily “seen in the distant background.” Id. In the two shots
in which the photographs are in the foreground, the “figures in [them] are barely
discernable.” Id. Based on those facts, we concluded that Fincher’s use was de
minimis, because the photographs were “not displayed with sufficient detail for
the average lay observer to identify even the subject matter of the photographs,
much less the style used in creating them.” Id. at 218; see also, e.g., Gottlieb
Development LLC v. Paramount Pictures Corp., 590 F. Supp. 2d 625, 632–33
(S.D.N.Y. 2008) (finding de minimis use of plaintiff’s pinball machine in film
where it was “always in the background” and was “never mentioned and
play[ed] no role in the plot”); Gayle v. Home Box Office, Inc., No. 17-cv-5867, 2018
WL 2059657, at *2–*3 (S.D.N.Y. May 1, 2018) (finding HBO’s use of plaintiff’s
graffiti in background of scene was de minimis where it was barely visible, never
29 in focus, had “no role in the plot,” and appeared “on screen for no more than two
to three seconds” (internal quotation marks omitted)).
Consider, in contrast, our decision in Ringgold, which rejected a de minimis
argument. There, BET and HBO included in a television show a poster featuring
a painting by artist Faith Ringgold. 126 F.3d at 72. The poster was displayed “as a
wall-hanging in [a] church hall” during a music recital, where it appeared in nine
sequences totaling 26.75 seconds. Id. at 72–73. In one “four-to-five-second
segment[,] . . . almost all of the poster [was] clearly visible.” Id. at 77. Although at
no point did “the dialogue, action, or camera work” call particular attention to
the poster, we concluded that the use of the poster was not de minimis, as “[t]he
painting component of the poster [was] recognizable as a painting, and with
sufficient observable detail for the ‘average lay observer’ to discern [the depiction
of] African-Americans in Ringgold’s colorful, virtually two-dimensional style.”
Id. at 73, 77, quoting Rogers v. Koons, 960 F.2d 301, 307 (2d Cir. 1992); see also, e.g.,
Hirsch v. CBS Broadcasting Inc., No. 17-cv-1860, 2017 WL 3393845, at *4–*5
(S.D.N.Y. Aug. 4, 2017) (use of plaintiff’s photograph of Ivanka Trump’s stalker
in television program about stalkers was actionable even though it appeared on
30 screen only for two seconds, as “[t]he observability factors . . . all disfavor[ed] a
finding of de minimis infringement”).
Here, the district court concluded that Townsquare’s publication of the
screenshots from the Jordan and Melle Mel Videos as background images for its
articles’ headlines constituted de minimis use because a “[s]ingle-still frame . . .
make[s] up a very small fraction of the original video.” App’x 130. That
reasoning overlooks the de minimis doctrine’s emphasis on observability. As the
cases above illustrate, the doctrine applies where the copyrighted work plays a
negligible or incidental role in the secondary work. But here, the copyrighted
work is the very subject of the secondary work. Townsquare included the
screenshots to signal to readers the topics of its articles. Thus, not only would a
reader be able to readily identify the “subject matter” of the screenshots, easy
identification was indeed Townsquare’s intention in reproducing them. Sandoval,
147 F.3d at 218.
Moreover, as Richardson argues, the district court’s reasoning is hard to
square with 17 U.S.C. § 106(5), which grants exclusive copyrights to “the
individual images of a motion picture or other audiovisual work.” Thus, one
could understand the copyrighted work here to be the individual screenshots
31 and not just the videos they are part of. Viewed through that lens, Townsquare
reproduced in each article not “a very small fraction” of a copyrighted work but
the entire work. App’x 130. The reproduction of a single frame of a larger video
may constitute in certain circumstances de minimis use, but it cannot be the sole
basis for that finding.
Lastly, Townsquare argues that the observability analysis employed in
cases like Ringgold and Sandoval has no place here, because those cases involved
“visual works” and not “video works.” Appellee’s Br. 47–49. That argument is
meritless. While Ringgold specifically addressed its observability analysis to the
copying of a “visual work,” 126 F.3d at 74, there is no “principled reason why
Ringgold can be disregarded” wholesale based on the medium of the copyrighted
and secondary works, Eliahu, 2024 WL 4266323, at *4. A video such as the ones at
issue in this case is, after all, an audiovisual work, and the analysis in Ringgold
would seem fully applicable if the work seen in the background of the accused
film were a TV screen showing, even for just a few seconds, a clearly
recognizable clip from a famous film (say, the farewell scene in Casablanca),
32 rather than a poster.7 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. Ringgold, 126 F.3d at 77. To be sure, the observability factors may vary
across media. For example Ringgold’s references to “lighting” and “camera
angles” are irrelevant in discussing Townsquare’s reproduction of still images on
its website. But the fact that particular observability factors may be medium-
specific does not alter the nature of the general inquiry.
Accordingly, the district court erred in finding Townsquare’s use of the
screenshots to be, as a matter of law at the pleading stage, de minimis.
Townsquare prominently displayed the screenshots, which are clearly
recognizable as taken from the embedded videos (as Townsquare intended them
to be), to communicate the subject matter of its articles. As a fallback,
Townsquare argues that the qualitative component of substantial similarity is not
7 Moreover, it appears that Ringgold plainly considered “audiovisual” works as a type of “visual” work. The decision explained how previous “caselaw provide[d] little illumination concerning claims that copyright in a visual work” — like Ringgold’s work — “ha[d] been infringed by including it within another visual work” — like the BET/HBO television show. 126 F.3d at 74.
33 satisfied, because its use of the screenshots “capture[d] none of the most
important qualitative components of the Videos.” Appellee’s Br. 50. But that too
is not determinable at this stage of the case; the screenshots arguably capture
some important qualitative components from the videos, even if those
components are of a factual nature. The screenshot from the Jordan Video
documents the basketball star in action, towering over one of the fight’s
participants. And the screenshots from the Melle Mel Videos, while they do not
communicate Melle Mel’s statements regarding Eminem, arguably evince the
confident, matter-of-fact demeanor with which he spoke.
Finally, Townsquare invites us to affirm on the alternative ground that its
use was fair. It is, of course, significant that the quantitative portion of the third
statutory factor, which loomed large in the fair-use discussion above regarding
Townsquare’s copying of the entire Jordan Video, would cut the other way with
respect to the screenshots. Nevertheless, the district court did not rule on that
basis, and an “appellate court [typically] does not consider an issue not passed
upon below.” Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 71 (2d
Cir. 2012) (internal quotation marks omitted). Moreover, for the same reasons
discussed above, the fair-use analysis is generally ill-suited to the pleading stage.
34 We therefore decline to address that issue here. Accordingly, we vacate the
district court’s judgment as to Richardson’s claim regarding the screenshots and
remand for further proceedings.
IV. Melle Mel Video
Finally, the district court concluded that Townsquare had a valid licensing
defense for embedding the Melle Mel Video based on YouTube’s Terms of
Service (“Terms”). We agree and affirm the judgment for Townsquare as to this
claim.
“A copyright owner who grants a nonexclusive license to use his
copyrighted material waives his right to sue the licensee for copyright
infringement.” Graham v. James, 144 F.3d 229, 236 (2d Cir. 1998). “The existence of
a license is an affirmative defense, placing upon the party claiming a license the
burden of coming forward with evidence of one.” Spinelli v. National Football
League, 903 F.3d 185, 197 (2d Cir. 2018) (internal quotation marks omitted).
“[W]hen the existence of a license is not in question, a copyright holder must
plausibly allege that the defendant exceeded particular terms of the license.”
Yamashita v. Scholastic Inc., 936 F.3d 98, 105 (2d Cir. 2019).
35 The district court took judicial notice of YouTube’s January 5, 2022 Terms
of Service, of which Townsquare attached a copy to its motion for judgment on
the pleadings. The Terms are one of several agreements that govern a YouTube
user’s enjoyment of the platform. The Terms provide, among many other things,
that a user who uploads a video to YouTube grants YouTube a license to his
content, which includes the ability to sublicense that content:
License to YouTube
By providing Content to the Service [i.e., YouTube], you grant to YouTube a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use that Content (including to reproduce, distribute, prepare derivative works, display and perform it) in connection with the Service and YouTube’s (and its successors’ and Affiliates’) business, including for the purpose of promoting and redistributing part or all of the Service.
App’x 114. In another portion of the Terms, YouTube grants users the ability to
“show YouTube videos through the embeddable YouTube player.” Id. at 111.
In addition, the Terms provide that a user grants a separate license to other
YouTube users that allows them to embed the user’s content through YouTube:
License to Other Users
You also grant each other user of the Service a worldwide, non-exclusive, royalty-free license to access your Content through the Service, and to use that Content, including to reproduce, distribute, prepare derivative works, display, and perform it, only as enabled by a feature of the Service (such as video playback or embeds). For clarity, this license does not grant any rights
36 or permissions for a user to make use of your Content independent of the Service.
Id. at 115 (emphasis added).
Accordingly, under the Terms, when The Art of Dialogue uploaded the
Melle Mel Video to YouTube, The Art of Dialogue gave permission to YouTube
to sublicense the video to Townsquare and provided a license directly to
Townsquare as well. Both the license and sublicense included the ability to
republish the video from YouTube by means of embedding.
While we normally would not consider extrinsic evidence attached to a
defendant’s motion under Rule 12(c), “[w]e have recognized . . . that in some
cases, a document not expressly incorporated by reference in the complaint is
nevertheless ‘integral’ to the complaint and, accordingly, a fair object of
consideration on a motion to dismiss.” Goel, 820 F.3d at 559. “In most instances
where this exception is recognized, the incorporated material is a contract or
other legal document containing obligations upon which the plaintiff’s complaint
stands or falls, but which for some reason—usually because the document, read
in its entirety, would undermine the legitimacy of the plaintiff’s claim—was not
37 attached to the complaint.” Id., quoting Global Network Communications, Inc. v.
City of New York, 458 F.3d 150, 157 (2d Cir. 2006).
That exception applies here, where Richardson does not meaningfully
dispute the applicability of the Terms to Townsquare’s uses of the Melle Mel
Video. To be sure, he argues in his reply brief that the district court improperly
considered the Terms in the context of a motion for judgment on the pleadings,
as the district court made multiple implicit factual determinations, including that
the Melle Mel Video had been on YouTube, that it had been uploaded by
Richardson or a bona fide licensee, and that Townsquare attached a true copy of
the Terms. But Richardson does not anywhere argue that those implicit factual
determinations were wrong. He does not, for example, assert that the Melle Mel
Video was uploaded onto YouTube without his consent or that the version of the
Terms that Townsquare attached was in any way inaccurate. Had he done so, the
resulting factual dispute would have rendered the Terms premature for
consideration at the pleading stage. But his failure to do so confirms that he
sought to rely on “clever drafting” to render his complaint “invulnerable to Rule
12[c].” Global Network Communications, 458 F.3d at 157. Accordingly, we are free
38 (and the district court was correct) to consider the YouTube Terms in assessing
the motion for judgment on the pleadings.8
Nor are any of Richardson’s other arguments persuasive. First, he contends
that even if the district court could consider the Terms at the pleading stage, the
resolution of the licensing defense is premature because the meaning of the
license itself is ambiguous. But the language of the Terms quoted above is clear:
The Art of Dialogue “grant[ed] each other user,” including Townsquare, a
“license to access” its videos, including the Melle Mel Video, and to “use th[ose]”
videos for, among other purposes, “embeds.” App’x 115.
Faced with such clear language, Richardson directs our attention
elsewhere, to Section 12 of YouTube’s API Terms, a separate agreement that a
user must abide by to use YouTube’s embedding feature in the manner that
Townsquare did. That section reads: “You and your API Client(s) will not, and
you will require those acting on your behalf and your users to not, infringe or
violate third-party rights, including intellectual property rights.” Appellant’s Br.
8 Moreover, because Richardson failed to argue that the district court erred in considering the Terms in his opening appellate brief and did so only in his reply, that argument is forfeited. See In re Sears Holdings Corp., 51 F.4th 53, 65 (2d Cir. 2022).
39 54 n.6. According to Richardson, that section “contradict[s] . . . the existence of a
sub-license as it implies that [Townsquare] would require permission directly
from the copyright holder in order to embed content outside of YouTube’s
platform.” Id.
Richardson’s reading of the clause, however, is incorrect, because it would
render the Terms’ license grant superfluous; if a user were required to obtain
permission directly from a creator to embed his content from YouTube, then the
license’s specific reference to embedding serves no purpose. Under California
law, which governs the Terms, “contracts . . . are to be construed to avoid
rendering terms surplusage.” Farmers Insurance Exchange v. Knopp, 50 Cal. App.
4th 1415, 1421 (1996). And, in any event, the two provisions are readily
harmonized. Section 12 prohibits users only from violating other users’
intellectual property rights, but there is no violation where a user reproduces
content as permitted by the Terms’ license. Because Townsquare republished the
Melle Mel Video through YouTube’s embedding feature as the Terms authorized,
Section 12 is inapplicable here.
Second, Richardson argues that, even if the license provided by the Terms
were unambiguous, questions of fact remain as to whether Townsquare
40 “complied with the terms and conditions imposed by YouTube with respect to
embedded videos.” Appellant’s Br. 50. While he identifies various requirements
in YouTube’s policies that he claims Townsquare may not have followed,9 he fails
to identify any that are conditions precedent to the Terms’ licensing provisions,
such that Townsquare’s putative failure to comply with those policies would
exceed or nullify its license to embed the Melle Mel Video.
In evaluating claims for copyright infringement where there exists an
underlying licensing agreement, “[w]e refer to contractual terms that limit a
license’s scope as ‘conditions,’ the breach of which constitute[s] copyright
infringement. We refer to all other license terms as ‘covenants,’ the breach of
which is actionable only under [state] contract law.” MDY Industries, LLC v.
9 For example, in his opening brief, Richardson observes that certain terms mandate that Townsqure “display[] a link to YouTube’s Terms of Service on [its] third-party websites, instruct[] users of [its] third-party websites that they are agreeing to be bound by the YouTube Terms of Service, and requir[e] users of [its] third-party websites to agree to a privacy policy.” Appellant’s Br. 54–55. And in his reply, Richardson points to a section of the Terms of Service entitled “Your Use of the Service” that is separate from the Terms’ licensing provisions. The “Your Use of the Service” section includes rules prohibiting users from “us[ing] [YouTube’s] [s]ervice to view or listen to [c]ontent other than for personal, non- commercial use” and from “sell[ing] advertising, sponsorships, or promotions on any page of any website . . . where [c]ontent from [its] [s]ervice is the primary basis for such sales.” Appellant’s Reply Br. 25, quoting App’x 113.
41 Blizzard Entertainment, Inc., 629 F.3d 928, 939 (9th Cir. 2010) (internal citation
omitted). Under California contract law, “[c]onditions precedent are disfavored
. . . and courts will not construe contract terms to create conditions precedent
unless the language of the contract clearly requires such a construction.” Sullivan
v. Finn, No. 16-cv-01948, 2017 WL 1209933, at *5 (N.D. Cal. Apr. 3, 2017), citing
Helzel v. Superior Court, 123 Cal. App. 3d 652, 663 (1981) (“As a general rule of
contract construction conditions precedent are not favored.”) and Antonelle v.
Kennedy & Shaw Lumber Co., 140 Cal. 309, 319 (1903) (“Courts are disinclined . . .
to construe the stipulations of a contract as conditions precedent, unless
compelled by the language of the contract plainly expressed.”).
Here, nothing in the language of the “License to YouTube” or the “License
to Other Users” conditions Richardson’s grant of permission to embed the Melle
Mel Video on Townsquare’s compliance with YouTube’s various policies.
Accordingly, any limitations that appear elsewhere in the YouTube Terms or
other agreements constitute covenants between YouTube and Townsquare,
which Richardson may not enforce. While YouTube has the power to enforce
those covenants, including by “suspend[ing] or terminat[ing]” Townsquare,
App’x 117, any violations of the covenants by Townsquare have no bearing on
42 the scope of the licenses Richardson granted. The district court therefore correctly
dismissed Richardson’s claim based on the Melle Mel Video.10
CONCLUSION
For the reasons above, we VACATE the district court’s judgment as to
Townsquare’s use of the Jordan Video and the screenshots from the Jordan Video
and the Melle Mel Video, AFFIRM the district court’s judgment as to
Townsquare’s use of the Melle Mel Video, and REMAND for further
proceedings consistent with this opinion.
10 The license on its face does not appear to cover Townsquare’s use of the screenshots, and indeed Townsquare does not suggest that it does. Thus our holding here applies only to Townsquare’s embedding of the video.