On Monday, Judge Cote granted a motion to dismiss claims that George Santos, former Congressman, brought against Jimmy Kimmel, ABC, and Disney regarding “Cameo” videos by Santos that Kimmel featured on his show, Jimmy Kimmel Live! Cameo is “a website that allows fans [] to request personalized video messages from public figures and celebrities.” Defendants, using fake names, submitted a number of “ridiculous” requests to Santos for such videos, and Santos created fourteen videos in response. Kimmel subsequently used some of these videos for a segment on his show, in which he “ask[ed] his audience ‘Will Santos Say It?’ before playing the video in full.”
On May 24, 2024, Santos filed an amended complaint alleging, among others, copyright infringement. In response, defendants argued that Santos failed to state a claim for copyright infringement because Kimmel’s segment on the Cameo videos constituted fair use, an affirmative defense. Judge Cote noted that fair use defenses are most frequently resolved at summary judgment, but may be raised in a pre-answer motion to dismiss “if the defense appears on the face of the complaint.”
Judge Cote found that fair use, that is, use “for purposes such as criticism, comment, news reporting,” was “clearly established.” She explained:
A reasonable observer would understand that Jimmy Kimmel Live! 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.
Judge Cote further rejected Santos’s argument that defendants’ deception in soliciting the videos prevented them from using fair use as an affirmative defense, stating that while “defendants’ conduct may have been deceptive and unkind,” their intent is irrelevant. Rather, the inquiry is objective and concerns “what the user does with the original work.” Here, Judge Cote concluded that “the purpose of the defendants’ use was clearly for criticism and commentary of the Videos themselves and their author.”