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USDC SDNY Grants Motion to Dismiss in Santos v. Kimmel, American Broadcasting Companies, Inc., and Walt Disney Company, 1:24-cv-01210 Copyright Action

In a ruling that’s being hailed as a win for fair use, a federal judge has tossed out a lawsuit brought by disgraced ex-congressman George Santos against late-night TV host Jimmy Kimmel, in Santos v. Kimmel, American Broadcasting Companies, Inc., and Walt Disney Company, 1:24-cv-01210, in the Southern District of New York. The legal battle was sparked by a series of hilarious prank videos that Kimmel allegedly lured Santos into making.

For those not familiar with the case, here’s the backstory: Kimmel created fake profiles on Cameo, a platform where fans can pay celebrities to create personalized video messages. Posing as admirers, Kimmel requested that Santos create a series of absurd videos, including one congratulating his “mom Brenda on the successful cloning of her beloved schnauzer Adolf” and another praising his “legally blind niece Julia on passing her driving test.”

Kimmel then aired the videos on his show, using them to poke fun at Santos and his penchant for saying outlandish things. Santos, never one to take a joke lightly, filed his Complaint in February, against Kimmel, American Broadcasting Companies, Inc., (ABC), and Walt Disney Company (Disney) raising claims of copyright infringement, fraudulent inducement, breach of contract, and unjust enrichment. According to Santos, (1) Kimmel’s use of the videos constituted copyright infringement, (2) Kimmel fraudulently induced Santos to make the videos, (3) Kimmel breached the Cameo license agreement by using the videos for commercial purposes, and (4) Kimmel was unjustly enriched at Santos’ expense by using the Cameo videos for commercial purposes without permission or compensation.

In response, Kimmel, ABC and Disney filed a Motion to Dismiss the Complaint for failure to state a claim, arguing that (1) Santos’s copyright claim was barred by the fair use doctrine, (2) his fraud claim failed for lack of out of pocket loss, and (3) the remaining claims were preempted by the Copyright Act.

Before the Court could weigh in, Santos filed an Amended Complaint, adding an additional claim for breach of implied contract. Kimmel and his co-defendants didn’t think the additional claim changed the landscape, and filed a Second Motion to Dismiss, raising all prior arguments of fair use, lack of out of pocket loss, and preemption.

Santos put up a fight, and argued in his Opposition that(1) the Defendants’ assertion of fair use was premature, (2) the Defendants should be precluded from invoking fair use protections, (3) fair use does not bar Santos’s claims; (4) Santos’s fraud claim was adequately pled; and (5) Santos’s claims are not preempted by the Copyright Act.

Kimmel, ABC, and Disney had the last word before Judge Cote considered the matter, and argued in their Reply that (1) the issue of fair use was ripe for decision; (2) Santos’s equitable estoppel arguments were without basis; (3) They had made fair use of the videos; (4) the fraud claim failed for lack of out of pocket expenses; and (5) the remaining claims were preempted.

On August 19, 2024, U.S. District Judge Denise Cote sided with Kimmel, ABC, and Disney, and dismissed Santos’s suit entirely. In her Opinion and Order, Judge Cote ruled that the Defendants’ use of the videos was “transformative use” and therefore protected by the fair use doctrine.

So what does this mean? Well, when a court says a use is “transformative use,” they mean it adds value or insights to the original work by using it in a new or different way. In this case, Kimmel didn’t just play the videos - he used them to mock Santos and comment on his reputation for saying outlandish things.

“Any reasonable observer of the [Jimmy Kimmel Live] segments during which the videos were shown would understand that their inclusion on the show served as criticism of and commentary on a newsworthy public figure,” Cote wrote.

Cote also rejected Santos’s argument that Kimmel’s actions devalued the market for Cameo videos by undermining the platform’s integrity. “Santos does not explain how any impact on the popularity of the Cameo platform — which is entirely speculative — impacts more specifically the public interest in the creative production of new expression,” she explained.

The ruling is being seen as a victory for fair use, which is a legal doctrine that permits the use of copyrighted material without permission in certain circumstances. Judge Cote cited the Supreme Court’s ruling last year in Andy Warhol Foundation for the Visual Arts v. Goldsmith, in support of the fair use doctrine that the intent of the user doesn’t matter in determining fair use - what matters is whether the new work is transformative.

The judge also dismissed Santos’s other claims, agreeing with the Defendants that Santos hadn’t shown any financial loss to establish a claim of fraudulent inducement, and that the remaining claims were preempted by the Copyright Act. While it remains to be seen whether Santos will appeal, for now, it’s a win for fair use.

The case is a great example of how fair use protects our ability to comment on and critique public figures and newsworthy events. It’s a reminder that copyright isn’t about controlling all uses of a work, but about promoting the creation of new ideas and expression.

Remember - fair use is a powerful tool for protecting free speech and creativity. But as always, it’s a fact-specific inquiry, and what’s transformative in one context may not be in another. If you’re unsure, it’s always a good idea to consult with a legal expert.

For more information please contact the author Acacia B. Perko at 412-288-4016 or perkoab@hh-law.com.