IP Law Daily, COPYRIGHT—S.D.N.Y.: Judge tosses George Santos’ lawsuit against Jimmy Kimmel over Cameo videos, (Aug 20, 2024)

By George Basharis, J.D.

Former congressman’s copyright claims rejected as “fair use” in high-profile case.

The federal court in New York City has thrown out George Santos’ lawsuit against late-night host Jimmy Kimmel over the use of Cameo videos on Kimmel’s show, dealing a blow to the disgraced former congressman’s legal efforts against the comedian. The ruling, issued by the U.S. District Court for the Southern District of New York, found that Kimmel’s use of the videos fell under “fair use” protections, effectively shielding the late-night host from Santos’ copyright infringement claims (Santos v. Kimmel, No. 1:24-cv-01210-DLC (S.D.N.Y. Aug. 19, 2024)).

In December 2023, shortly after being expelled from Congress amid fraud allegations, Santos began offering personalized video messages on the Cameo platform for $400 each. Kimmel and his team submitted multiple requests to Santos using fake names, resulting in Santos recording 14 videos with absurd content.

Kimmel then aired segments called “Will Santos Say It?” on his ABC show Jimmy Kimmel Live, playing five of the videos in full and providing commentary. Santos subsequently sued Kimmel, ABC, and parent company Disney for copyright infringement and related claims.

Santos’ lawsuit, filed on February 16, 2024, alleged copyright infringement, fraudulent inducement, breach of contract, and unjust enrichment against Kimmel, ABC, and Disney. The complaint detailed how Kimmel allegedly created multiple fake Cameo accounts and submitted at least 14 requests for personalized videos from Santos, using fictitious names and scenarios. Santos claimed he created these videos under the assumption they were for personal use, as per Cameo’s terms of service. The lawsuit further alleged that Kimmel then aired five of these videos on his show “Jimmy Kimmel Live!” and across various social media platforms, violating the personal use license and Santos’ copyrights.

The complaint sought injunctive relief to prevent further use of the videos, actual and statutory damages, and disgorgement of profits. Santos argued that Kimmel’s actions not only violated copyright law but also constituted fraud, as Kimmel allegedly misrepresented himself to induce Santos into creating the videos.

Ruling on copyright infringement. The court dismissed Santos’ copyright infringement claim, finding that Kimmel’s use of the videos constituted fair use under copyright law. The court conducted a detailed analysis of the four factors considered in fair use cases.

The court first examined the purpose and character of Kimmel’s use of the videos. It determined that the use was transformative and served the purposes of criticism and commentary on a public figure. The court noted that a reasonable observer would understand that the videos were shown to comment on Santos’ willingness to say absurd things for money, rather than for their original intended purpose.

Regarding the nature of the work, the court acknowledged that the Cameo videos were more expressive than factual in nature. However, it also pointed out that they were published works, which slightly weighed against a finding of fair use. This factor did not significantly impact the overall fair use analysis.

When considering the amount of the copyrighted work used, the court recognized that Kimmel played the videos in their entirety. Nevertheless, the court found this to be reasonable given the transformative purpose of the use. The full context of the videos was necessary for Kimmel’s commentary and criticism to be effective.

Finally, the court assessed the effect of Kimmel’s use on the potential market for Santos’ videos. It found no evidence of harm to this market, emphasizing that any alleged damage arose from the criticism itself rather than from market usurpation. The court concluded that Kimmel’s use did not diminish the commercial value of Santos’ Cameo videos in a way that would negatively impact the fair use analysis. Weighing all factors, the court concluded fair use was “clearly established” based on the complaint and related documents.

Rejection of other claims. The court also dismissed Santos' claims for fraudulent inducement and breach of contract. The court found Santos failed to allege any actual monetary loss from Kimmel’s misrepresentations, only seeking the difference between personal and commercial license fees. Moreover, Santos’ breach of contract claims were found to be preempted by federal copyright law, as they essentially sought to enforce rights equivalent to those protected by copyright.

The Case is No. 1:24-cv-01210-DLC.

Judge: Cote, D.

Attorneys: Andrew Mancilla (Mancilla & Fantone, LLP) for George Santos. Nathan Siegel (Davis Wright Tremaine LLP) for James C. Kimmel and American Broadcasting Companies, Inc., and The Walt Disney Compny.

Companies: American Broadcasting Companies, Inc.; The Walt Disney Compny

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