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Last week, the U.S. Court of Appeals for the Second Circuit issued a precedential opinion inSantos v. Kimmel, No. 24-2196 (Oct. 6, 2025), affirming the Southern District of New York's Rule 12(b)(6) dismissal of former Congressman George Santos's copyright claims against Jimmy Kimmel, ABC, and Disney.
The suit arose after Kimmel, using fictitious names, submitted requests to Santos for video messages through Cameo, an online platform where fans purchase personalized messages from celebrities. Santos fulfilled the requests, and Kimmel aired the videos on his show as part of a "Will Santos Say It?" segment. Santos sued the defendants for copyright infringement and other claims. The district court dismissed the complaint for failure to state a claim, holding that the copyright claims were barred by the fair use doctrine and the remaining claims were either preempted or insufficiently pled.
The Second Circuit affirmed. The Court held that the fair use doctrine barred Santos's claims on the face of the complaint. The Court agreed with the district court that Kimmel's use was transformative, finding Kimmel's purpose was to comment on the willingness of Santos to say absurd things for money. The Court rejected Santos's argument that, because this was alsohisoriginal purpose in creating the videos, the use was not transformative. The Court explained that whether a secondary use is transformative turns on what a reasonable observer thinks the work conveys, not the parties' subjective intent. Santos acknowledged that a reasonable person would view the videos as conveying encouragement and hope, a purpose distinct from Kimmel's commentary and criticism.
The Court also rejected Santos's argument that Kimmel's alleged deception in procuring the videos negated fair use. Citing Supreme Court guidance, it explained that allegations of bad faith do not defeat fair use where the use is otherwise transformative and does not aim to supplant the original. As to the latter, the Court concluded Santos had not suffered market harm because the complaint itself foreclosed any plausible allegation of market substitution: late-night parody does not compete with Cameo's market for personalized greetings, and creators do not license criticism of their own works. The Court determined the remaining fair use factors also favored defendants or were neutral.
Because the allegedly infringing segments and the videos were incorporated into the pleadings, the Court reiterated that fair use can be resolved at the pleading stage and affirmed dismissal.
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