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Second Circuit Calls Foul On Unauthorized Use of Michael Jordan Video

April 30, 2026 – The TMCA

by Bruce R. Ewing

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Michael Jordan is best known for his offensive skills, but his defense was an underrated aspect of his play; he was 1998 Defensive Player of the Year, after all. So it’s fitting that he features prominently in a recent decision from the Second Circuit Court of Appeals in which three (or maybe two) defenses to claims of copyright infringement were at issue: (1) fair use; (2) de minimis use; and (3) license. While the District Court thought all of those defenses passed muster and doomed the plaintiff’s claims, only the third scored for the defendant on appeal. Oh, and let’s not forget that there were other celebrities making prominent cameos in this opinion – Grandmaster Melle Mel, Eminem and Fifty Cent – as if we were courtside at the Garden at the turn of the last century.

Our story opens in 2015, when plaintiff Delray Richardson found himself in the right place at the right time – if by “right place” we mean the site of a brawl between a “gang member” (Richardson’s characterization) and one of Michael Jordan’s bodyguards. Richardson happened to be present and recorded the fight that was broken up by none other than Jordan himself. Richardson took his video, which is grainy and only 45 seconds long, and published it in 2015. But no one seems to have noticed, or cared, at least at the time.

Fast forward to 2023, when the DailyLoud, a hip-hop blog, shared the video on X and claimed that the two fight participants were actually rapper Wack 100 and YouTube personality Charleston White, who the DailyLoud asserted was on site but just out of the video frame. White denied this allegation, but the controversy was such that defendant Townsquare Media published an article about it on Townsquare’s online hip-hop news publication XXL, under the headline “Michael Jordan Intervenes in Heated Confrontation Involving Wack 100 in Viral Video From 2015 – Watch.” (Aside: How “viral” could this video have been if no one noticed it for eight years? Just sayin.) The Townsquare article embedded the DailyLoud’s X post, including its republication of the entire Jordan video shot by Richardson. And a screenshot from the video was used as the background for the Townsquare headline. That screenshot, per the Second Circuit, “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.”

But the unauthorized use of his Michael Jordan video was not Richardson’s only beef with Townsquare. Sometime after 2015, Richardson and an entity called The Art of Dialogue interviewed the legendary rapper Grandmaster Melle Mel. A roughly three-minute excerpt of that interview was published on YouTube in 2023 by The Art of Dialogue, entitled “Eminem Being White Is The Reason He’s A Top 5 Rapper Of All Time. If He Were Black He’d Be Average!” Townsquare promptly published an article on XXL about Melle Mel’s criticism of Eminem by, again, embedding the video from The Art of Dialogue’s YouTube channel, and yet another screenshot from that video was used as the background for the Townsquare headline, along with an image of Eminem. Two days later, after Fifty Cent came to Eminem’s defense, Townsquare published another article on this feud, once again embedding the Melle Mel video from The Art of Dialogue’s YouTube channel, but with a different screenshot from the same video and an image of Fifty Cent.

The Jordan video article and the Melle Mel articles prompted Richardson to go on offense against Townsquare and sue it for copyright infringement in the Southern District of New York. But District Judge Hellerstein ejected Richardson from the courthouse by granting Townsquare’s motion for judgment on the pleadings, holding that its use of the Jordan video were fair; the screenshots were de minimis uses that did not give rise to liability; and the use of the Melle Mel video was properly licensed from YouTube. Undaunted, Richardson took his claims to a higher court and scored wins on two of the three defenses Townsquare asserted, and that the District Court accepted.

On fair use, the Second Circuit thought that the issue couldn’t be assessed at such an early stage. Recall that there are four statutory fair use factors – (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount of the portion of the work used, relative to the whole; and (4) the effect of the alleged fair use on the market or value of the plaintiff’s work. On the first factor, the Second Circuit thought the use of the Jordan video might qualify as transformative because Townsquare was reporting on the controversy about who was fighting with who in 2015, and that would have tilted this fair use factor in favor of Townsquare. But the problem for Townsquare was that when an article is published under the headline “Michael Jordan Intervenes in Heated Confrontation Involving Wack 100 in Viral Video From 2015 – Watch,” without a lot of commentary about the video, the less transformative it becomes. Per the Second Circuit, “there is a difference between gesturing towards a transformative message and actually communicating that message,” and given that Townsquare’s article was (at least for purposes of a pre-discovery motion ) for a commercial purpose, this factor didn’t weigh that much in favor of Townsquare, if at all.

The second fair use factor did, because the Jordan video was both published and factual – characteristics that cases have held weigh in favor of fair use. But the third factor didn’t, because Townsquare published the entire video and, for present purposes, its claims that it had to publish the entire video by embedding it on the XXL website were rejected by the Second Circuit. The last fair use factor was the killer for Townsquare, because it was possible that Townsquare’s unauthorized use was a market substitute for Richardson’s video. Indeed, if there were a market for the Jordan video (a big “if” that the Second Circuit said was an allegation that might not pan out), it’s hard to see why anyone would pay Richardson for content they could obtain through Townsquare and XXL for free. So, given all of these uncertainties – and recognizing that Townsquare might have a better shot (from downtown?) after discovery – the Jordan video claims were sent back to the District Court.

So too were the claims about both the Jordan and Melle Mel screenshots, because the Second Circuit rejected application of the de minimis defense, which the court noted is less of a defense and more a failure by the plaintiff to establish a prima facie case of infringement. Essentially, there is a line of cases recognizing that when a copyrighted work is used in another work without authorization in a fleeting or insubstantial manner – usually to the point where the copyrighted work is not at all or barely recognizable – or when only a tiny fraction of the copyrighted work is used, there is insufficient similarity for an infringement claim to be viable. But here, the defense had no applicability. The screenshots of Jordan and Melle Mel were posted as the backdrops for the headlines of three articles and were readily recognizable and identifiable. It therefore didn’t matter that one or two frames from the videos were used, especially in light of the protection the Copyright Act gives to “the individual images of a motion picture or other audiovisual work.” 17 U.S.C. § 1065. So, Richardson’s screenshot claims lived to see another day.

But not so his claim on the Melle Mel video, because of the decision by The Art of Dialogue to publish the interview on its YouTube channel. Perhaps unbeknownst to Richardson, if you upload a video to YouTube, you are granting not just a license to YouTube to publish your content on its site, but a license to other YouTube users to access your content and reproduce or distribute it so long as such secondary uses are “enabled” by YouTube – with video playback or embeds specifically covered by the license. Since all Townsquare did was embed the video as accessible on YouTube on the XXL page, through the YouTube player, the license provided Townsquare with a complete defense on Richardson’s infringement claim premised on unauthorized use of the Melle Mel video. (FYI – Townsquare didn’t argue that the license also covered the use of a screenshot from the video, presumably because that screenshot was not “enabled” by YouTube.)

So, what does this case tell us? Three things:

  1. As has long been the case, it is very difficult to establish a fair use defense prior to the completion of discovery, at least in the Second Circuit.
  2. The de minimis defense probably won’t apply if the plaintiff’s work, or a material portion of it, is readily recognizable in the accused work.
  3. Copyright owners of audiovisual works who upload their content to YouTube are authorizing the use of that content anywhere, by anybody, so long as that subsequent use is “enabled” by YouTube.

Unfortunately, the decision doesn’t tell us who really was involved in the 2015 brawl; why the donnybrook occurred; what Michael Jordan thought of the whole affair; how Eminem reacted to criticism from Melle Mel; or why Fifty Cent jumped into the middle of this controversy. Sadly, while these are all things that most people would actually care about, intellectual property aficionados will have to be content with the clearly-articulated copyright law principles the Second Circuit has given us.

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EPA Limits Title V Re-Litigation of NSR Permits

Overview On September 25, 2026, the U.S. Environmental Protection Agency (“EPA”) published a final rule that significantly limits the ability of third parties to use the Clean Air Act (“CAA”) Title V permitting process to revisit New Source Review (“NSR”) permitting decisions years after those decisions were made. The rule establishes that NSR permitting determinations generally must be challenged during the original permitting proceeding, thereby providing regulated sources with greater permitting certainty and finality for major capital projects. Published in the Federal Register titled Clarifying the Scope of “Applicable Requirements” Under State Operating Permit Programs and the Federal Operating Permit Program (Docket ID No. EPA-HQ-OAR-2023-0401), the rule amends 40 C.F.R. Parts 70 and 71 to codify EPA’s interpretation regarding when requirements established under other CAA programs may be reviewed, modified, or implemented through the Title V operating permit program. The rule becomes effective 30 days after publication. The rule addresses two principal issues: (1) the relationship between NSR preconstruction permitting and Title V operating permits, and (2) the treatment of the General Duty Clause under CAA section 112(r)(1). Most significantly, the rule provides greater certainty for sources navigating the NSR permitting process. EPA’s amendments are intended to ensure that NSR permitting decisions made through an approved public process are generally not revisited later through Title V permit proceedings. The rule responds to a circuit split between the U.S. Courts of Appeals for the Fifth and Tenth Circuits. In Environmental Integrity Project v. EPA, 969 F.3d 529 (5th Cir. 2020), the Fifth Circuit upheld EPA’s interpretation, concluding that it was consistent with the text, structure, and purpose of Title V. In contrast, the Tenth Circuit reached the opposite conclusion in Sierra Club v. EPA, 964 F.3d 882 (10th Cir. 2020), finding that the then-existing regulatory definition of “applicable requirement” did not support EPA’s position. By amending the regulatory language on which the Tenth Circuit relied and codifying the interpretation approved by the Fifth Circuit, EPA has established a nationwide framework governing the interaction between NSR and Title V. NSR and Title V: EPA Establishes a Uniform Nationwide Framework At the core of the rule is EPA’s effort to define the respective roles of NSR and Title V. The rule codifies the approach EPA has applied since 2017: once a source obtains an NSR permit under an EPA-approved permitting program, and that permit was issued following public notice with an opportunity for comment and judicial review, the permit establishes the NSR-related “applicable requirements” of the State Implementation Plan (“SIP”) or Federal Implementation Plan (“FIP”) for Title V purposes. 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Permit applicants should ensure that applicability analyses, emissions calculations, control technology evaluations, modeling demonstrations, and supporting technical documentation are thoroughly developed during the original permitting proceeding. For significant projects, applicants may therefore have an additional incentive to identify and resolve potential permitting issues before the NSR permit is issued rather than assuming that unresolved issues can be addressed during a subsequent Title V proceeding. Potential Incentive for Broader Public Participation EPA also notes that permitting authorities may choose to provide public notice and an opportunity for comment for a broader range of NSR permits because permits issued through a qualifying public process receive the benefit of the finality framework established by the rule. 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The Supreme Court Update - October 8, 2026

On September 29, 2026, the Supreme Court granted certiorari in one case: Department of Homeland Security v. D.V.D., No. 26-426: This case concerns the Trump Administration’s “third-country removal” procedures, where immigrants are deported to countries not listed in the removal orders. In granting certiorari, the Court granted the Government’s application to stay a lower court decision halting the practice, which will allow third-country removals to continue pending resolution of the case. The issues presented are: (1) Whether the district court had jurisdiction over respondents’ claims; (2) whether the district court had authority to enter class-wide declaratory relief and APA vacatur under 8 U.S.C. § 1252(f)(1); (3) whether the Government’s guidance on third-country removals is unlawful under 8 U.S.C. § 1231(b), the due process clause, or FARRA/CAT and its implementing regulations; and (4) such other questions that the Government determines are appropriate for the proper disposition of the case. On October 1, 2026, the Court granted certiorari in three additional cases: Rhoney v. Barbosa da Cunha, No. 26-104: Immigration officials detained Ricardo Aparecido Barbosa da Cunha—a Brazilian citizen who had lived in the United States for approximately twenty years after entering without inspection—and denied him a bond hearing under 8 U.S.C. § 1225(b)(2)(A). The Second Circuit held that his detention was instead governed by § 1226(a), which permits release on bond, because § 1225(b)(2)(A)’s mandatory-detention requirement applies only to noncitizens apprehended while entering the country or shortly thereafter. The question presented is: Whether 8 U.S.C. § 1225(b)(2)(A) mandates the detention pending removal proceedings of aliens who, like Barbosa da Cunha, are present in the United States without having been admitted. Missionaries of St. John the Baptist, Inc. v. Frederic, No. 25-113: A Catholic religious organization sought to build a shrine to the Virgin Mary on land the organization owned adjacent to its church in Park Hills, Kentucky. Local zoning restrictions prohibited the proposed construction. The question presented is: Whether a land-use regulation that prohibits a religious institution from building a religious structure on its own property constitutes a “substantial burden” on religious exercise under the Substantial Burden Provision of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a). Marschner v. Marschner, No. 25-1349: Under the Uniformed Services Former Spouses’ Protection Act (“USFSPA”), a veteran’s longevity-based retirement pay can be divided in a divorce, but retirement pay based on disability and retirement pay that was waived to receive disability pay are indivisible. The question presented is: Does the USFSPA require state courts to refuse enforcement of indemnification provisions in a divorce settlement agreement?

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SEC Proposes Expansion of Investment Adviser Performance-Based Compensation Rule

On September 30, 2026, the Securities and Exchange Commission (the “SEC”) proposed amendments to Rule 205-3 under the Investment Advisers Act of 1940, as amended (the “Advisers Act”), which provides an exemption from the general prohibition under Section 205(a)(1) of the Advisers Act on registered investment advisers receiving performance-based compensation (the “Proposal”) so long as performance-based compensation is limited to “qualified clients”.1 Most notably for private fund sponsors, the Proposal would expand the definition of “qualified client” to include any investors that satisfy the “accredited investor” definition under Regulation D. The Proposal may also have implications for private fund managers that rely on exemptions from investment adviser registration under state law because certain state-level investment adviser registration exemptions incorporate or otherwise reference the federal qualified client definition. Expansion of the Qualified Client Definition Under the current Rule 205-3, an investor generally may qualify as a qualified client if, among other alternatives, the investor has at least $1.4 million under management with the adviser or has a net worth exceeding $2.7 million. These thresholds are higher than the financial thresholds applicable to many accredited investors under Regulation D. As a result, an investor may currently qualify as an accredited investor for purposes of investing in a private offering without qualifying as a qualified client for purposes of paying performance-based compensation. The Proposal would expand the qualified client definition to include any natural person or legal entity investor that satisfies the accredited investor definition under Regulation D. The Proposal would also remove the assets under management and net worth thresholds under the current Rule 205-3 qualified client test. For private funds relying on Section 3(c)(1) of the Investment Company Act of 1940, this change could reduce the need to apply a separate qualified client standard to investors that already qualify as accredited investors. Dorsey Observations and Next Steps If adopted as proposed, the expanded qualified client definition could be particularly significant for private fund managers. Most private fund offerings are already limited to accredited investors under Regulation D. However, the Proposal could expand the pool of prospective investors available to emerging private fund managers while reducing the regulatory burden associated with complying with Rule 205-3. The Proposal could also benefit advisers operating below the SEC registration threshold that rely on a state private fund adviser exemption. A number of states have adopted exemptions modeled on the North American Securities Administrators Association (“NASAA”) private fund adviser exemption, which may condition relief for advisers to certain funds relying on Section 3(c)(1) on each beneficial owner satisfying the federal qualified client definition. However, state requirements vary, and any effect of the Proposal would depend on the text of the applicable state exemption and how it incorporates Rule 205-3. Many emerging private fund managers may have a larger network of accredited investor relationships than qualified client relationships during the early stages of their investment advisory business. Currently, under Rule 205-3, private fund managers may receive performance-based compensation from investors who do not satisfy the qualified client definition if those investors were admitted to their private funds prior to registration with the SEC. Following registration with the SEC, however, managers may continue to permit investors that are not qualified clients to invest in future private funds but may not receive performance-based compensation from those investors with respect to such investments. In addition, because the net worth and assets under management thresholds for qualified client status are adjusted for inflation every five years, the pool of qualified client investors may diminish over time as previously eligible investors no longer satisfy the applicable thresholds. The Proposal could provide the dual benefit of greater flexibility for private fund managers to establish and maintain relationships with accredited investors as their businesses scale and they become registered with the SEC, and greater flexibility for certain accredited investors to participate in investment strategies that historically have been restricted to much larger institutional investors. Unless and until the Proposal is adopted, investment advisers should continue to comply with the existing qualified client requirements. If the Proposal is adopted, private fund sponsors should consider whether corresponding changes are appropriate for their subscription documents, investor questionnaires, and other offering materials. Advisers that are state-registered or rely on a state-level exemption should also consult the laws and regulations of each relevant jurisdiction before changing investor eligibility standards or performance-based compensation practices, because adoption of the federal amendments may not automatically modify state requirements. Comments on the Proposal will be due 60 days after publication in the Federal Register. 1 Investment Adviser Performance-Based Compensation Modernization, Investment Advisers Act Release No. IA-7022 (Sept. 30, 2026), available at https://www.sec.gov/rules-regulations/2026/09/s7-2026-28#33-11443proposed.

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Dorsey Recognized in Inaugural 2026 IAM/WTR Copyright 1000

Dorsey & Whitney LLP is pleased to announce its recognition in the inaugural edition of the Copyright 1000: The World’s Leading Copyright Professionals, published by IAM and World Trademark Review (WTR). Nine Dorsey attorneys were individually recognized, and the Firm’s Denver, Minneapolis, New York, Salt Lake City, and Seattle offices were recognized in the firm rankings. The following Dorsey attorneys were recognized in the inaugural guide: Lindsey Sadler Gregory Tamkin Charlene Krogh Evan Everist Jeffrey Cadwell Fara Sunderji Bruce Ewing Catherine Parrish Lake J. Michael Keyes The Copyright 1000 is the first dedicated ranking focused solely on the world’s leading copyright practitioners. The guide identifies leading copyright firms and practitioners across key jurisdictions worldwide. Dorsey’s intellectual property attorneys advise clients on a wide range of copyright matters, including protection, enforcement, licensing, litigation, transactions, and issues involving emerging technologies and digital content. The inaugural Copyright 1000 rankings are published by IAM and WTR.