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Second Circuit affirms dismissal of copyright infringement and state-law claims brought by former Congressman George Santos against Jimmy Kimmel and others for broadcast of Cameo videos created by Santos.
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 he recorded.
Late-night host Jimmy Kimmel created multiple Cameo accounts using fictitious names, then submitted various requests to Santos, including for videos congratulating a friend for eating six pounds of ground beef in 30 minutes, congratulating a mother for successfully cloning her pet schnauzer Adolf, and congratulating a legally blind niece for passing her driving test. Rather than negotiate and acquire a license to air the videos, Kimmel acquired a personal-use license through the Cameo Terms of Service. Kimmel then created a segment on Jimmy Kimmel Live! called “Will Santos Say It?” in which he introduced the videos by asking the audience “Will Santos say it?” before playing the Cameo videos Santos recorded in their entirety. The segment was also published via social media.
Santos sued Kimmel, ABC and Disney for copyright infringement, fraudulent inducement, breach of contract and unjust enrichment. Defendants moved to dismiss, raising fair use as their primary defense to the copyright infringement claims. The district court dismissed the complaint, concluding that the copyright claims were barred by fair use and that the state-law claims either were preempted by the Copyright Act or failed to state a claim. (Read our summary of the district court’s decision here.) On Santos’ appeal, the Second Circuit affirmed the district court’s dismissal.
The court first addressed whether defendants’ use amounted to fair use. In addressing the first fair use factor—whether defendants’ use was transformative—the court noted that Santos did not dispute the district court’s finding that the purpose and character of defendants’ use was “to comment on the willingness of Santos [] to say absurd things for money.” On appeal, Santos argued that this was also his original purpose in making the videos, because Kimmel had “instigated the creation of the original Works” and was thus the “designer[]” of their original purpose. The court disagreed, stating that a reasonable observer’s thoughts—not Kimmel’s or Santos’ subjective intent—determines the purpose of the use. In this case, the court found that a reasonable observer would instead perceive that the videos conveyed “feelings of hope, strength, perseverance, encouragement, and positivity,” just as Santos himself had acknowledged in his complaint.
Santos further argued that defendants acted in bad faith, thus nullifying the fair use defense. Although the court acknowledged that “[f]air use presupposes good faith and fair dealing,” it noted that good faith in this context typically means that the secondary user does not act with intent to “supplant” the “commercially valuable right” in the work. Here, however, Santos’ complaint illustrated that defendants were instead motivated by “(sarcastic) criticism and commentary.”
As to the fourth fair use factor—whether widespread adoption of defendants’ use would usurp the market for Santos’ videos—the key question was not whether defendants’ works would harm the market for Santos’ works by devaluing them via parody or criticism but whether they would usurp the market for Santos’ works by offering a competing substitute, the court noted. The court decided that this factor weighed in defendants’ favor because the uses did not constitute competing substitutes.
The court also concluded that each of Santos’ state-law claims failed to state a claim for relief. Santos first argued that defendants breached the Cameo Terms of Service. The court noted that Santos was not a party to the Terms of Service and there was nothing therein acknowledging that Santos was a third-party beneficiary to the contract. The court likewise affirmed dismissal of Santos’ breach of implied contract claim because Santos had not sufficiently pleaded “a meeting of the minds” between him and defendants or what the essential terms of this alleged implied contract were. Finally, the court affirmed dismissal of the fraudulent inducement claim because Santos did not sufficiently allege that he suffered any actual financial harm as a victim of defendants’ alleged fraud.
Summary prepared by Frank D’Angelo and Alexander Loh
