Santos v. Kimmel

Background

George Santos sued James C. Kimmel, American Broadcasting Companies, Inc. (ABC), and The Walt Disney Company over five personalized videos Santos created through Cameo. Kimmel and the other defendants used accounts with fake names to request at least fourteen videos from Santos. The requests were subject to Cameo’s personal-use license restrictions. Defendants later showed five videos in two segments of Jimmy Kimmel Live! and posted the segments on social media and their website.

Santos asserted claims for copyright infringement, fraudulent inducement, breach of contract, breach of implied contract, and unjust enrichment. He later abandoned the unjust-enrichment claim. The defendants moved to dismiss the amended complaint under Rule 12(b)(6), which tests whether a complaint alleges enough facts to state a legally plausible claim. They principally argued that their use of the videos was protected by fair use.

Copyright Infringement and Fair Use

The court accepted the complaint’s factual allegations as true for purposes of the motion. It nevertheless held that fair use was clear from the complaint and materials incorporated into it, allowing the defense to be decided at the motion-to-dismiss stage.

The court applied the four statutory fair-use factors:

- Purpose and character of the use: This factor favored defendants. The court found that the videos were used for criticism and commentary about Santos’s willingness to read absurd messages for money. Although the broadcasts were part of a commercial television program and defendants may have acted in bad faith by using fake accounts, those facts did not outweigh the transformative purpose of the use. - Nature of the copyrighted work: This factor weighed slightly against fair use. The videos contained Santos’s creative and personal expression, but they had been published through Cameo. - Amount used: This factor was neutral. Defendants showed the videos in full, but the court found that showing less would have undermined the critical purpose because viewers would not know whether Santos had actually read the entire requests. - Market effect: This factor favored fair use. The court found that the alleged harm arose from criticism of Santos, not from defendants taking over a market for the videos. It also found no identified harm to a potential or existing market for these particular videos beyond the challenged use itself.

Weighing the factors together, the court held that defendants’ use was fair use and granted their motion to dismiss Santos’s copyright-infringement claim.

Fraudulent Inducement

Santos alleged that defendants fraudulently induced him to make the videos by pretending to be fans seeking personal-use videos. Under New York law, fraudulent inducement requires, among other things, a resulting injury. The court held that Santos had not alleged the required financial loss. His requested damages were based on the difference between what defendants paid and the price of an expedited commercial license. The court characterized that request as lost profits from a bargain Santos might have obtained, rather than money he lost because of the alleged fraud. The court therefore dismissed the fraudulent-inducement claim.

Contract Claims

Santos alleged that defendants breached express and implied contracts by using the videos beyond the personal-use licenses and by providing false information to Cameo. The court held that both contract theories were preempted by the Copyright Act. Copyright preemption means that federal copyright law displaces a state-law claim when it concerns a copyrightable work and seeks to enforce rights equivalent to copyright rights.

The court concluded that Santos’s claims ultimately sought to stop defendants from publicly displaying the videos without paying for a broader license. That right was equivalent to the copyright owner’s exclusive right to publicly perform or display the works. The court also rejected Santos’s argument that the false information supplied to Cameo created a separate contract claim, because the alleged damages were still based on obtaining a more expensive commercial license. The court granted the motion as to the express- and implied-contract claims.

Disposition

The defendants’ June 7, 2024 motion to dismiss was granted. The Clerk of Court was directed to enter judgment for the defendants. The opinion does not state that the dismissal was with or without prejudice.