George Santos v. James C. Kimmel et al was a case in the Southern District of New York that pitted a cultural pariah against a popular late-night host. At issue was Jimmy Kimmel tricking Santos into making ridiculous videos Santos posted on the website “Cameo,” which Kimmel then posted on his show.
Former Congressman George Santos was elected as a Trump-supporting Republican and later indicted on federal charges for wire fraud, money laundering, and theft of public funds. During his descent from success, the public also learned that Santos had not earned the university degree that he claimed. Eventually, Santos was expelled from Congress in December 2023. After his expulsion, Santos created an account on Cameo, a website that allows fans to request personalized video messages from celebrities and public figures.
When Kimmel and his media company co-defendants caught wind of Santos’ Cameo profile, they created multiple accounts using fake names, and asked Santos to record messages for fictitious people — although the terms of service provided that, in creating an account, the account holder agreed not to create any side account using a false identity.
Cameo offered two kinds of licenses.
- A personal license granted the user license solely for personal, non-commercial, and non-promotional purposes.
- A royalty-free license to use the video on a variety of media for reasonable promotional purposes, excluding specifically television.
After their subterfuge, Jimmy Kimmel and staffers used the George Santos Cameo videos in a comedy bit. Each of the videos that the defendants requested were subject to the personal use restrictions.
Defendants asked Santos to record absurd messages, like, “George, please congratulate my friend for winning the Clearwater, Florida Beef Eating contest ….and wish him a speedy recovery.” Another dedication read, “George, please congratulate my mom, Brenda, on the successful cloning of her beloved Schnauzer.” And another one, “George, can you please congratulate my legally blind niece, Julia, on passing her driving test?”
Intending to create a serial routine for the show, Kimmel introduced a segment called “Will Santos Say It?” Kimmel played the Cameo videos in full, but defendants refrained from posting any additional videos after receiving a demand letter from Santos’ attorney. Santos then filed a complaint alleging copyright infringement, fraudulent inducement, breach of contract, and unjust enrichment.
The defendants made a motion to dismiss, They argued that the complaint itself establishes that the videos constitute fair use. The Second Circuit has held that even though fair use is usually a fact-intensive inquiry, the pleadings alone might establish the lack of fair use.
Defendants explained that using the videos was fair use under Section 107 of the Copyright Act, which says that fair use includes anything used for criticism or commenting on news reporting. As the Warhol case demonstrated, a use that has a further purpose is said to be transformative. Among the best-recognized justifications for copying from another’s work is to provide comments on it or criticism of it. That’s because it’s difficult to criticize a work unless you reprint or reproduce it.
It’s clear in this case that defendants televised the videos for their transformative purpose of criticism and commentary. Any reasonable observer of the video segments would understand their inclusion in the show was to criticize and comment on a newsworthy public figure.
The court determined a reasonable observer would understand that the use of the videos was to show and to comment on the willingness of Santos to say absurd things for money ($400 for each customized video). Thus, the videos were used for political commentary and criticism, purposes that did not supersede the use for the original videos but instead were transformative of such uses. (Remember, the intended use was a video to send to the caller’s friend or relative.)
The Supreme Court in Warhol emphasized that the transformative quality of a work does not turn on the subjective intent of the user or the stated and perceived intent of the artist. Even assuming the defendants acted in bad faith by procuring a personal use license using false names, bad faith doesn’t undermine the fair use question. The first factor of transformative use still favors defendants especially where it is for criticism.
Santos’ claim of fraudulent inducement, a common law claim, said defendants’ tortious conduct induced him to provide the videos, but fraudulent inducement has to result in injury. Santos hadn’t been damaged at all.
As for breach of contract, those claims were dismissed because they were preempted by the Copyright Act. That is, these were state law claims that asserted rights equivalent to those protected by the Copyright Act. The contract claims were ultimately aimed at stopping the public display of Santos’ copyrighted works, allegedly because defendants lacked a proper license. In other words, his claims were not meaningfully different from infringement of a copyright. So, the court granted the motion to dismiss.
I guess it comes down to a question we all would want to ask George Santos (as we would want to ask about everything else that made him notorious): What was he thinking? The scripts for the videos were so ridiculous, wouldn’t that raise the concern of anyone who thought about what they were doing? But it does show, just as he was doing to get elected, George Santos was willing to say anything to get paid.
