Would you believe that Disney’s famously copyright-maximalist lawyers have just brought us a nice victory for fair use?

Earlier this year, we wrote about disgraced former Congressman George Santos suing Disney and Jimmy Kimmel after Kimmel used some of Santos’ Cameo videos (that Kimmel had secretly requested) in a, well, somewhat trollish fashion. Santos, who was drummed out of Congress after facing a bunch of charges regarding questionable handling of campaign funds, started promoting that he would record Cameo videos for between $350 and $500 a video.

At one point, he had bragged about how many people had paid him for Cameo videos. This resulted in Kimmel having his staff purchase some Cameo videos, which made Santos look silly. The videos were then played on Kimmel’s ABC late night show. Santos claimed that the videos were purchased under a “personal” use license, which was a lot less expensive than a commercial use license.

The argument was that the videos were used “commercially,” which meant that the license had been violated, and the videos infringed on Santos’ copyright. In my initial write-up of the case, I pointed out that Kimmel had a very strong fair use claim. Some commentators felt that Santos’ argument was a bit stronger than I made out, but it appears the judge in the case, Denise Cote, who has been involved in a number of high-profile copyright cases, agreed with me that it was fair use.

Notably, she granted Disney and Kimmel’s motion to dismiss on fair use grounds. That’s important because some people believe that fair use shouldn’t be decided so early in a case. Either it should go to the summary judgment stage or (much worse) is an issue for a jury to decide.

However, Cote says here that Kimmel’s use was pretty obviously fair use. She notes that the Second Circuit has said that in obvious fair use cases, you can find fair use at the motion to dismiss stage:

The Second Circuit has specifically acknowledged “the possibility of fair use being so clearly established by a complaint as to support dismissal of a copyright infringement claim.”

As in most fair use cases, the court went through the basic four factors test required to determine fair use. The court awarded the first factor (purpose of the use) to Disney/Kimmel because it was clearly about commentary on Santos:

In short, a reasonable observer would understand that JKL showed the Videos to comment on the willingness of Santos — a public figure who had recently been expelled from Congress for allegedly fraudulent activity including enriching himself through a fraudulent contribution scheme — to say absurd things for money. Thus, the Videos were used for political commentary and criticism, purposes that do not supersede the “objects” of the original Videos.

The fact that the use of the videos made Santos look bad doesn’t matter:

Santos’s argument that the defendants should not be able to “seek refuge in the fair use concept of transformation that they themselves manufactured through deceit” finds no support in copyright law. Defendants’ conduct may have been deceptive and unkind, but the Supreme Court in Warhol emphasized that whether a work is transformative turns on neither the “subjective intent of the user,” 598 U.S. at 544, nor the “stated or perceived intent of the artist.” Id. at 545 (citation omitted). A court must instead conduct “an objective inquiry into what use was made, i.e., what the user does with the original work.” Id. Here, the purpose of the defendants’ use was clearly for criticism and commentary of the Videos themselves and their author.

While not always true, the first factor is often the key to winning fair use. The fact that it was found to be favoring Kimmel here basically makes the rest of the analysis less important, but even so, the rest of the factors either favor no one or Kimmel anyway.

On the second factor, the nature of the work, the court says this is mostly neutral, but perhaps favors Kimmel/Disney slightly. The third factor, how much of the work was used, is also deemed to be neutral. It did use the entirety of the work, as other courts have found, but that’s fine if you need to use the entirety of the work for the fair use at hand.

Copying “the entirety of a work is sometimes necessary to make a fair use.” Swatch Group Management Services Ltd. v. Bloomberg L.P., 756 F.3d 73, 90 (2d Cir. 2014). The “ultimate question under this factor is whether the quantity and value of the materials used are reasonable in relation to the purpose of the copying.”….

…. The use of the Videos to criticize and comment on a public figure would have been undermined by showing less than the entirety of the Videos, because the audience would not know whether Santos had indeed said everything in the requests.

Then there’s the fourth factor: the effect on the market. As I had noted in my original piece about the complaint, it would be difficult to argue that Kimmel’s use would harm the market. And, indeed, that’s what the court found as well:

Santos argues that defendants’ use devalued the market for Cameo videos, including Santos’s, by “undermining the integrity” of the Cameo.com platform. Santos does not explain how any impact on the popularity of the Cameo platform — which is entirely speculative — impacts more specifically the public interest in the creative production of new expression. Moreover, the FAC identifies no harm to the potential or existing market for the Videos that Santos created for the defendants, other than the “very use at bar.” Swatch, 756 F.3d at 91 (citation omitted). Thus, this factor weighs in favor of fair use.

Put it all together and you have two mostly neutral factors and two that weigh towards fair use, and thus: fair use.

Taking all four factors into consideration, the defense of fair use is clearly established by the FAC and documents integral to it. The defendants’ use of the Videos was transformative; “transformative uses tend to favor a fair use finding because a transformative use is one that communicates something new and different from the original or expands its utility, thus serving copyright’s overall objective of contributing to public knowledge.”

The court also rejects the breach of contract claims, saying that those are basically arguing the same thing as the copyright claims, and are thus pre-empted.

It wouldn’t surprise me if Santos appeals, but this is a good clean, fair use win. Disney’s copyright lawyers aren’t regularly known for arguing on behalf of fair use, but in this case they were right to, and it’s nice to see the court agree.

Update: And, yup, Santos has already told the court that he’s appealing.

We have pointed out just how ridiculous Elon Musk’s SLAPP lawsuit against the Center for Countering Digital Hate is, so much that I supported the filing of an amicus brief in support of CCDH, even as I find CCDH’s positions and research to be generally problematic and misleading. But, even if their research methods aren’t great, they still deserve their right to speak out, and they should not face ruinous litigation from a petulant CEO who only pretends to support free speech.

On Thursday, there were oral arguments in the case, and to say they did not go well for Elon would be an understatement. The judge appeared to openly mock the company for its terrible legal arguments. And, most importantly, he (correctly) pointed out how “antithetical” to free speech this lawsuit appeared to be:

“You put that in terms of safety, and I’ve got to tell you, I guess you can use that word, but I can’t think of anything basically more antithetical to the First Amendment than this process of silencing people from publicly disseminated information once it’s been published,” Breyer said.

“You’re trying to shoehorn this theory by using these words into a viable breach of contract claim,” the judge added.

This was exactly the point that was raised in the amicus brief (brilliantly put together by Harvard’s Cyberlaw clinic). That the claims of “breach of contract” were a nonsense attempt to stifle speech, and hoping that by not including a defamation claim it would somehow avoid First Amendment scrutiny. The judge, Charles Breyer, seemed to have figured out ExTwitter’s sneaky plan pretty easily.

Near the end of the hearing, the judge noted that if something is proven to be true a defamation lawsuit falls apart. Why, he said, didn’t Musk’s X bring a defamation suit if the company believes X’s reputation has been harmed?

“You could’ve brought a defamation case, you didn’t bring a defamation case,” Breyer said. “And that’s significant.”

Yeah, because everyone knows that there was no actual defamation.

The judge appeared also to see through the nonsense of the breach of contract claims directly. ExTwitter claims that CCDH should be liable for the loss of ad revenue of advertisers leaving the platform in response to CCDH’s research report. But, the judge pointed out how tenuous this was, to the point of calling the argument “one of the most vapid extensions of law I’ve ever heard.”

But in order to make this case, X had to show the group knew the financial loss was “foreseeable” when it started its account and began abiding by Twitter’s terms of service, in 2019, before Musk acquired the site.

X lawyer Hawk argued that the platform’s terms of service state that the rules for the site could change at any time, including that suspended users whom the group says spread hate speech could be reinstated.

And so, Hawk said, if changes to the rules were foreseeable, then the financial loss from its reports on users spreading hate should have also been foreseeable.

This logic confused and frustrated the judge.

“That, of course, reduces foreseeability to one of the most vapid extensions of law I’ve ever heard,” Breyer said.

There are times, in a courtroom, where you shouldn’t read very much into things a judge says. And then there are times where it’s pretty clear the judge understands just how how wrong one side is. This is one of the latter cases.

According to a friend who attended the hearing (virtually, since it was on Zoom), these quotes don’t even get to how bad the hearing was for Elon. Apparently, at one point the judge asked ExTwitter’s lawyer “are you serious?” which is never a good thing. ExTwitter’s lawyer also had to walk back a few arguments in court, including when the company tried to apply the wrong terms of service to a separate non-profit they had tried to drag into the case. And, finally, towards the end of the hearing, apparently ExTwitter’s lawyer tried to claim that they had pled actual malice (which, you know, is kind of important), only to have CCDH’s lawyer point out that they had not. CCDH is right. You can look at the amended complaint yourself.

None of that is likely to go over well with this judge.