ABC, Kimmel Wrongly Ducked Copyright Suit, Santos Tells 2nd Cir.

Former Rep. George Santos’ copyright suit against Jimmy Kimmel and ABC over use of his Cameo videos shouldn’t have been prematurely tossed on First Amendment grounds, he told the Second Circuit.

A judge dismissed the case by improperly weighting fair-use factors and glossing over deception by “Jimmy Kimmel Live!” to get Santos to make the videos, the politician told the US Court of Appeals for the Second Circuit in a brief filed Monday. Santos argued the court wrongly found the purpose of the use to be transformative, and therefore favored under the “fair use” analysis, despite the show manufacturing that purpose by requesting the personalized messages from Santos on Cameo.

Santos’ appeal challenges a US District Court for the Southern District of New York ruling that viewers would understand the purpose of the Kimmel segments to be a commentary on Santos. The opinion was issued the day he pled guilty to fraud and identity theft. In his appeal, Santos argued those who “fraudulently induce the creation” of works shouldn’t be able to claim fair use.

“The district court’s ruling creates a perverse ‘deceiver’s privilege’ that would allow bad actors to exploit creators by fraudulently manufacturing content for criticism,” he said. “This undermines copyright law’s constitutional purpose of promoting creative expression.”

Kimmel’s “Will Santos Say It?” segments included videos the show requested of Santos congratulating users for successfully cloning their pet schnauzer “Adolf” and “coming out as a ‘furry’” with the “fursona” of a “Beav-a-pus.” Santos’ February complaint against Kimmel, ABC, and parent The Walt Disney Co. said they used false identities and pretenses to induce the videos’ creation before disseminating them, violating Cameo’s terms of service.

District Judge Denise Cote found observers would understand the videos as the defendants’ claimed they would: as commentary on Santos’ willingness to say absurd things for money. The judge also ruled Santos’s state law breach of contract claims were preempted by the Copyright Act because, in their essence, they sought the same relief while complaining of the same acts.

On fair use, Santos’ appeals brief claimed the first factor—the purpose and character of the work—incorporated whether there was “bad faith” along with whether the work was commercial and transformative. He said the show’s bad faith was of a “particularly troubling nature” as the “fraud was the very instrument of the Works’ creation.”

Santos also called the district court’s logic on whether the purpose was transformed “fundamentally flawed” because the show had instigated the work’s creation and designed its purpose. Santos also said Cote minimized the defendants’ bad faith in analyzing the first factor, particularly given that the extent of the bad faith hadn’t been explored in discovery.

Cote’s analysis of the fourth factor—effect on the works’ market—was also erroneous because she dismissed, as “entirely speculative,” Santos’ claim that undermining Cameo’s integrity would hurt the value of Cameo videos, including those made by Santos.

Counsel for the defendants didn’t immediately respond to a request for comment.

Mancilla Fantone LLP and Joseph W. Murray represent Santos. Davis Wright Tremaine LLP represented Kimmel and ABC before the district court.

The case is Santos v. Kimmel, S.D.N.Y., No. 24-2196, Brief 11/4/24.