Last week Former member of the U.S. House of Representatives George Santos told the Second Circuit that his copyright lawsuit about the use his Cameo videos on Jimmy Kimmel Live! was improperly tossed by the District Court on fair use grounds. 

In case you missed it, Santos sued the late-night host back February for commissioning a series of absurd Cameo videos under fake names and then airing them on Jimmy Kimmel Live! in a segment dubbed “Will Santos Say It?”

You can purchase personalized video messages on “Cameo” from your favorite (or least favorite) celebrities and public figures.  George Santos began selling  videos of himself on the platform shortly after his expulsion from Congress in December, 2023 (following his federal criminal indictment in connection with a fraudulent political scheme, money laundering, and theft of public funds). 

Jimmy Kimmel and his team created Cameo profiles under fake names and asked George Santos to make outlandish videos—in one request, they asked him to congratulate their legally blind niece Julia on passing her driving test; in another, to congratulate their mom, Brenda, on the successful cloning of her beloved schnauzer, Adolf. Santos allegedly created 14 videos for, unbeknownst to Santos, Kimmel and team. 

Poking fun at Santos’s penchant for making outlandish statements, Kimmel aired a segment in which he previewed the Cameo requests and asked his live audience, “will Santos say it?” before playing three of Santos’s videos in full. In response, Santos sued for copyright infringement, accusing Kimmel and the companies behind his show (ABC and Disney) of “deliberate deception and wrongful appropriation” of Santos’s digital content.  The District Court dismissed the claim, finding that Santos’s copyright claim is foreclosed by the doctrine of fair use. 

“Fair use” of a work is an exception to copyright infringement. The first of four fair use factors—the “transformative factor”—considers the purpose of the use, including whether it is commercial. A transformative use adds new expression, meaning, or message to the original work. Use of a work to criticize, comment, or report is often protected as transformative even if the use is also commercial. 

Despite the commercial purpose of Kimmel’s use of the videos, Judge Cote held that “any reasonable observer of the [Jimmy Kimmel Live] segments during which the videos were shown would understand that their inclusion on the show served as criticism of and commentary on a newsworthy public figure.” 

The court outright rejected Santos’s argument that Kimmel should not be able to “seek refuge in the fair use concept of transformation that they themselves manufactured through deceit,” pointing to the Supreme Court’s 2023 holding in Warhol that intent does not dictate whether a use is transformative. While Kimmel’s actions may have been “deceptive and unkind,” reproduction of Santos’s clips “for the transformative purposes of criticism and commentary” is protected fair use.

Santos asked the Second Circuit to review the dismissal, arguing that, “as a matter of policy,” the equitable defense of fair use should not be available to a party who fraudulently induces the creation of a copyright work by another in order to use that work for the purpose of criticism. According to Santos, the decision will essentially enable bad actors to fraudulently induce the creation of a work for the ultimate purpose of exploiting the work for commentary under the protection of fair use.  Santos says that decision “undermines not only copyright law but also the integrity of legitimate content creation platforms” which “cannot function if users can freely misrepresent their identities to obtain content at lower prices, only to exploit it commercially."

It would not be surprising to see Kimmel argue in response that the imposition of some sort of fraud or deceptive conduct exception to fair use would allow public figures to use copyright law to insulate themselves from criticism by arguing that their own expression was wrongfully obtained. Such an exception to fair use would be especially troublesome where, like here, there is no dispute that the statements at issue were willing made (and recorded) by the plaintiff/appellant. 

Stay tuned for further developments. 

George Santos v. James C. Kimmel et al., No. 24-2196, in the U.S. Court of Appeals for the Second Circuit.