Santos v. Kimmel

Court dismisses complaint for copyright infringement brought by former Congressman George Santos against defendants who broadcast Cameo videos filmed by Santos, holding that use of videos on Jimmy Kimmel Live! to criticize and comment on Santos constituted fair use.

Plaintiff George Santos, a former member of the U.S. House of Representatives, was expelled from Congress in 2023 after his federal indictment on charges of wire fraud, money laundering and theft of public funds. Shortly after his expulsion, Santos created an account on Cameo, a website where fans can request and pay for personalized video messages from celebrities. Santos charged $400 per video.

Defendants ABC, Disney and Jimmy Kimmel created multiple Cameo “user” accounts using fake names, then submitted “ridiculous” requests to Santos, including for videos congratulating a friend for eating six pounds of ground beef in 30 minutes, a mother for successfully cloning her pet schnauzer, Adolf, and a legally blind niece for passing her driving test. Rather than negotiate and acquire a license to air the videos on television, the defendants acquired only a personal-use license through the Cameo terms of service.

Kimmel then introduced a segment on his television show, Jimmy Kimmel Live!, called “Will Santos Say It?” Kimmel introduced the Cameo videos created by Santos by asking the audience “Will Santos say it?” before playing the videos in their entirety. The defendants also posted the “Will Santos Say It?” segments on social media.

Santos sued the defendants for copyright infringement, fraudulent inducement, breach of contract and unjust enrichment. The defendants moved to dismiss, raising fair use as their primary defense to the copyright infringement claim.

Fair use is an affirmative defense to copyright infringement. The court observed that four statutory factors govern a fair-use defense: “(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.” 

The court held that the defendants’ use of the videos recorded by Santos constituted fair use. With respect to the first factor—the purpose and character of the use—the court held that any “reasonable observer would understand that [Kimmel] showed the [v]ideos to comment on the willingness of Santos -- a public figure who had recently been expelled from Congress for allegedly fraudulent activity including enriching himself through a fraudulent scheme -- to say absurd things for money.” Moreover, using the videos was necessary to “enable[] the commentary[]” about Santos’ venality. Accordingly, even though the videos were used for a commercial purpose by the defendants, their primary use was for the purpose of political commentary and criticism. The court concluded that the first factor weighed in favor of fair use.

The court found the second and third factors to be neutral. Although the nature of the videos was more expressive than factual because of Santos’ “personal touches” and “lighting and framing” decisions, Santos had already “published” the videos by posting them on Cameo before the defendants broadcast them. And while the defendants had used the entirety of the videos, “use of the [v]ideos to criticize and comment on a public figure would have been undermined by showing less than the entirety of the [v]ideos, because the audience would not know whether Santos had indeed said everything in the requests.”

The court found that the fourth factor—whether widespread adoption of the challenged use would adversely affect the potential market for the videos—favored the defendants. Any harm to Santos resulted from the use of the videos to criticize Santos, not the “usurpation” of a market for the videos. The public benefits from the satirical commentary outweighed any “dollar amounts likely lost.” The court thus held that, together, the balance of the factors weighed in favor of fair use and dismissed Santos’ copyright infringement claim.

The court likewise dismissed Santos’ remaining state law claims. Santos abandoned his unjust enrichment claim in his response to the motion to dismiss. The court found that Santos failed to allege any “out of pocket” losses as necessary to state a claim for fraudulent inducement under New York law. Santos’ breach of contract claim was preempted by the Copyright Act because it was, in duplicative fashion, “‘aimed at stopping’ the public display of [the] copyrighted works without a proper license[.]”

Summary prepared by Safia Gray Hussain and Keane Barger.