Late Night, Early Dismissal: The Santos-Kimmel Copyright Case

A New York Judge dismissed former Rep. George Santos' lawsuit against Jimmy Kimmel Live over the late-night host’s use of personalized Cameo videos in one of his segments. Scott Hervey and Tara Sattler discuss this decision on this installment of The Briefing. Watch this episode on the Weintraub YouTube channel here.   Show Notes: Scott: I can see the situation unfolding in the writer’s room for Jimmy Kimmel Live. How can they show that former US Representative George Santos would say just about anything for money and have that be extremely funny? The resulting prank video skit got a bunch of laughs and a copyright lawsuit. However, a recent decision by the US District Court for the Southern District of New York ended Santos' lawsuit. I'm Scott Hervey from Weintraub Tobin, and I'm joined today by my colleague Tara Sattler, to discuss this case and its implications on the television and media industry on today's installment of the briefing. Tara, welcome back. It's great to have you. Tara: Thanks, Scott. I'm glad to be here. Scott: Tara, by chance, have you seen these George Santos cameo videos? Tara: I have, and they really are quite hilarious. Scott: Yeah, they are. I could see why the writers for Jimmy Kimmel Live pitch this. But why don't you give our listeners a quick summary of the facts? Tara: Certainly, this case stems from George Santos creating personalized videos on the Cameo platform after he was expelled from Congress. Jimmy Kimmel and his show created fake cameo accounts and requested 14 absurd videos from Santos, which they received and then aired on Jimmy Kimmel Live as part of a segment called Will Santos Say It? As part of the segment, Kimmel made jokes about Santos, including about his federal wire fraud case to which Santos pled guilty. Now, the Cameo terms of service say that the talent, who in this case would be Santos, owns the copyright in the video. Cameo offers two types of to the user who requests the video. However, both licenses specifically exclude television exploitation. Scott: Right. If you're Santos, you're thinking, I own the copyright, and the license granted to the account owner specifically excludes television. So, of course, Santos, Seuss, Kimmel, ABC, and Disney for copyright infringement and a couple of related claims. Disney and the rest of the defendants moved to dismiss, arguing that their use of the videos constituted fair use. The court granted the defendant's motion to dismiss. The key issue was whether Kimmel's use of the videos qualified as fair use under copyright law. Now, as we know, Tara, because you and I have done a lot of podcasts on the Andy Warhol Foundation Supreme Court case, this case is post-Warhol, which essentially tightened up fair use, where the focus is on the purpose of the use and whether purpose justifies the copying. Tara: True. We recall that the Supreme Court in Warhol specifically called out criticism as a purpose that justifies copying. Scott: That's exactly what the defendant said and what the court relied on in finding fair use. The court said that Kimmel's use was clearly for the purpose of criticism and commentary on a newsworthy public figure. The court emphasized that Kimmel was using the videos to criticize Santos's willingness to say absurd things for money shortly after being expelled from Congress for, albeit fraudulent activity. The court saw this as political commentary that did supersede the original purpose of the videos.