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Here’s What Happened:
For those who haven’t been keeping up with recent Congressional news, George Santos is a public figure and former member of the United States House of Representatives. In May 2023, Santos was indicted on numerous federal felonies, including wire fraud in connection with a political campaign, money laundering and theft of public funds. He was expelled from Congress on December 1, 2023.
After being expelled from Congress, Santos created an account on www.cameo.com (Cameo). Cameo allows fans to request personalized video messages from public figures and celebrities (referred to as “Talent”). Cameo’s terms of service are pretty simple. Talent (using the term loosely as applied to Santos) agree not to create an account using a false identity. Users may request personalized videos and obtain a license to use them. The license is personal and cannot be used for commercial and promotional purposes.
Jimmy Kimmel is the executive producer and host of his late-night talk show, Jimmy Kimmel Live (JKL) which is broadcast on ABC. JKL saw a great opportunity for a late night bit. So JKL ordered numerous cameo videos from Santos. They included requests for Santos to create a Cameo video saying preposterous and outlandish things. For example:
· To congratulate the winner of the Clearwater Florida Beef Eating Contest and wish him a speedy recovery because he’s now in the hospital;
· To congratulate Brenda on the successful cloning of a beloved schnauzer named Adolf after several prior failures;
· To wish a speedy recovery to a legally blind teenager who was able to get a driver’s license and is in the hospital suffering from injuries after a crash; and
· To congratulate a friend who just came out as a Furry.
Santos made the Cameo videos as requested. JKL showed them on air and posted them on social media along with commentary about Santos and his new position as an expelled member of Congress.
Santos was not happy. After registering the videos with the US Copyright Office, he sued JKL and ABC (and ABC’s holding company, Disney Company) for copyright infringement, fraudulent inducement and breach of contract.
JKL and ABC brought a motion to dismiss. The defendants argued that airing and posting the videos was fair use.
The owner of a work of authorship, like a Cameo video, has the exclusive right to copy, distribute and broadcast the work. The unauthorized use of a work is copyright infringement. A defendant can avoid liability if there was fair use. Usually, fair use is an affirmative defense that requires the defendants to answer the complaint first. But, fair use can be brought up in a motion to dismiss when the possibility of fair use is clear on the face of a complaint.
The court analyzed the four factors of fair use asserted by JKL. The first factor, the purpose of the use, weighed in favor JKL. JKL clearly used the videos for the purposes of criticism and comment. JKL showed how far Santos would go to earn $400 by making videos that say absurd things. The second factor, the character of the work, weighed slightly in favor of Santos because it was a creative work. The third factor, the amount of the work used, was neutral. JKL used the entire videos because to show less would have undermined the use for criticism and comment. The fourth factor, the effect on the market, weighed in favor of fair use. The court relied heavily on the public benefit. The videos were displayed and published for the purposes of commentary and not to supplant Santos’ economic benefits from the works. If this wasn’t fair use, then the use of a work for criticism and satirical commentary would be stifled.
The court dismissed Santos’ claims of infringement, fraudulent inducement and breach of contract and entered judgment for JKL and ABC.
WHY YOU SHOULD KNOW THIS: Copyright Law walks a line between the protection for the owner of a work of authorship and a society that values political commentary. When political commentary comes up against copyright protection, fair use always comes into play.
Note: On August 10, 2024 (the same day that this decision was rendered), Santos pleaded guilty to committing wire fraud and aggravated identity theft.
Cited Authority: George Santos v. James C. Kimmel et al., 24-cv-1210 DCL (D.Ct. S.D. NY 2024).