Fair use under copyright law considers whether the copyrighted work is “for purposes such as criticism, comment, news reporting, teaching ...” and so on. 17 U.S.C. § 107. This includes “whether the new work merely supersedes the objects of the original creation[,] (supplanting the original), or instead adds something new, with a further purpose or different character.” Warhol Found. for Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 528 (2023) (citation omitted). A use that has a further purpose is said to be “transformative.” Id. at 529. 

For example, to criticize and comment on a public figure such as George Santos who is a former member of the United States House of Representatives, expelled after being indicted on federal charges of wire fraud in connection with a fraudulent political scheme. 

After being expelled from Congress, George Santos began offering to create personalized video messages on the Cameo platform for $400 each. Cameo's terms of service prohibited creating accounts with false identities. The videos that Santos created in response to user requests would be owned by Santos along with the copyright. 

The late-night talk show, Jimmy Kimmel Live! (“JKL”), created multiple Cameo accounts using fake names, and submitted requests to Santos for videos using these Cameo accounts. Accordingly, Santos created videos in response to such requests as congratulating a friend for coming out as a “Furry” whose “‘fursona' is a platypus mixed with a beaver” or “beav-a-pus.” 

These videos were created by Santos under Cameo's “personal use” license which was restricted “solely for your own personal, non-commercial, and nonpromotional purposes.” Cameo also allows the grant of a commercial license that specifically excludes television. 

In December 2023, JKL began airing a segment called “Will Santos Say It?” in which “ridiculous requests” had been sent to Santos in order “to find out ‘Will Santos Say It'.” Before showing each video, the request was read to the audience and after asking the audience “Will Santos Say It?”—the video was played in full with some humorous commentary afterwards. 

Santos sued JKL in February 2024 for copyright infringement and fraud, which the Southern District of New York has now dismissed. Santos v. Kimmel, No. 1:24-cv-01210-DLC (S.D.N.Y. Aug. 19, 2024). 

[A] reasonable observer would understand that JKL showed the Videos 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 contribution scheme -- to say absurd things for money. Thus, the Videos were used for political commentary and criticism, purposes that do not supersede the “objects” of the original Videos. Warhol, 598 U.S. at 539.

The court also noted that the original copyrighted work is, at least in part, the object of the commentary because the fact that Santos was willing to read the requested messages on camera for $400 was what “enables the commentary.” 

With respect to the videos being aired in their entirety by JKL, “the use was transformative” in criticizing and commenting on a public figure “because [otherwise] the audience would not know whether Santos had indeed said everything in the requests”; and thus did not weigh against a finding of fair use. 

Also, Santos argued that JLK actively misled Santos concerning their identity and purpose in seeking the Cameo videos. But the Court held that the fact that JKL had procured “personal-use licenses using accounts with fake names (rather than forthrightly negotiating a commercial fee)” for use in a commercial endeavor was not dispositive of the fair use question. So, “the first factor still favors defendants in light of the transformative nature of the secondary use as criticism.” 

Finding that JLK's “use of the Videos was transformative,” the court held that the defense of fair use was clearly established, and dismissed Santos's claim for copyright infringement. 

Separately, the court dismissed Santos's fraudulent inducement claim because Santos had sought recovery of the difference between what JLK had paid for a personal license to use the videos and the price of an expedited commercial license for each video—and this did not constitute an “out-of-pocket economic loss” caused by the alleged fraud. 

Santos filed a Notice of Appeal the day after the district court dismissed the case.  

Unlike the typical fair use case, JKL here took an active role in prompting the creation of the copyrighted work that then became the subject of commentary and criticism at issue. It will be interesting to see how this is handled by the Second Circuit in the appeal.  

The attorneys at Thomas P. Howard, LLC handle copyright matters nationwide.