12/11 – A federal judge in the Southern District of New York partially granted summary judgment in a copyright dispute between Level 12 Productions and Mediaite, holding that Mediaite infringed one video by embedding it without authorization but permissibly used another under the fair-use doctrine.

The case arose from Mediaite’s embedding of two social-media videos: an eleven-second clip of protesters chanting outside Gracie Mansion (“Video 1”) and footage of Chrissy Teigen and John Legend walking through a protest near the White House Correspondents’ Dinner (“Video 2”). Mediaite did not obtain licenses for either video.

In its decision, the court rejected the Ninth Circuit’s “server test,” holding that embedding can constitute a public display under the Copyright Act and a violation of a copyright holder’s exclusive rights. Moving on to the fair-use factors, the court found Mediaite’s use of Video 1 non-transformative and market-harming, but held that Video 2 was used fairly as part of commentary critiquing the footage itself.