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.

Former Rep. George Santos, kicked out of Congress last year for being an irredeemable liar, has spent his time since expulsion pulling in the big bucks making videos on Cameo for anywhere between $350 and $500 a pop.

Last year, Senator John Fetterman made news when he got Santos to record a Cameo video trolling disgraced, indicted colleague Senator Bob Menendez who refuses to resign. That video had Santos urging “Bobby” to “hang in there.” Earlier this month, Santos admitted that he’d surpassed 1,200 videos in the last few months, bringing in a few hundred thousand dollars.

Apparently, a little over a dozen of those came from talk show host Jimmy Kimmel, who started a segment in December called “Will Santos Say It.” Kimmel submitted wacky Cameo requests and played some on the show. Back in December, Santos complained about this — mainly that he wasn’t getting paid enough for the videos.

Over the weekend, Santos actually sued Kimmel, along with ABC/Disney, claiming copyright infringement. Because, I’m sure, Disney doesn’t employ any copyright lawyers who will eat Santos and his lawyer for lunch and spit out the remains into bowls made out of Mickey Mouse.

The lawsuit is not good. The crux is that Kimmel (1) misrepresented himself and (2) purchased videos under a “personal” license instead of a “commercial” one, and therefore this is both fraud and copyright infringement.

It is likely neither.

On the copyright side, Kimmel has a strong fair use claim. He used them for commentary and criticism without harming the market for Santos’ Cameos (in fact, they likely increased it). The fraud part is just nonsense. Santos didn’t lose money out of this, he made money.

The lawsuit undermines its copyright claims by inserting Kimmel’s commentary, which helps to show how this is fair use (and amusing):

KIMMEL: Yeah so now this Cameo thing, according to George, is really paying off. He claims he’s made more money in seven days than he did in Congress for a year. And part of that money came from me. I sent him a bunch of crazy video requests because I wanted to see what he would read and what he wouldn’t read, and I showed some of them on the air on Thursday, um, and now he’s demanding […] to be paid a commercial rate. Could you imagine if I get sued by George Santos for a fraud? I mean how good would that be? It would be like a dream come true. So since I started buying his videos his rates went way up to $500 a piece. He should be thanking me for buying these videos. But I have a big stockpile you want to see one? Again George had no idea these requests were from me, I just wrote them and sent them in. So “Will Santos say it?” Here we go […] [CAMEOS #4 and #5 were then published]

The lawsuit also includes the five prompts that Kimmel (under made-up names) submitted to Santos that were later aired. Kimmel says he submitted more, and it’s unclear what happened with the others, if Santos’ legal threat made them go away or if he even made them.

Still, for your enjoyment, here are the prompts:

a. On or about December 6, 2023, at approximately 4:46 p.m. Kimmel, misrepresenting himself as “Chris Cates” made the following fraudulent representation to Santos: “George please congratulate my friend Gary Fortuna for winning the Clearwater Florida Beef Eating Contest. He ate almost 6 pounds of loose ground beef in under 30 minutes – which was a new record! He’s not feeling great right now but the doctor thinks he will be released from the hospital soon. Please wish him a speedy recovery!” (“Fake Request 1”)

b. On or about December 6, 2023 at approximately 4:55 p.m. Kimmel, misrepresenting himself as “Jane” made the following fraudulent representation to Santos: “George please congratulate my mom Brenda on the successful cloning of her beloved schnauzer Adolf. She and Doctor Haunschnaffer went through a lot of dogs in the trial runs but they finally got it to stick. Tell her to give Adolf a big belly rub for me!” (“Fake Request 2”)

c. On or about December 7, 2023, at approximately 12:18 p.m. Kimmel, misrepresenting himself as “Ron” made the following fraudulent representation to Santos: “My name is Ron. Please tell my wife to call me George. Not George my name is Ron. You are George. Just tell her to call me George. But again Ron. I haven’t seen Swoosie or the kids since my disco birthday and it’s not fair. She says I burned down the shed shooting off fireworks but I was trying to scare a bear away. It isn’t fair. I love my Swoosie and I just want our family together on Christmas or if not that Valentimes Day or Flag. Watch out for bears.” (“Fake Request 3”)

d. On or about December 7, 2023, at approximately 12:32 p.m. Kimmel, misrepresenting himself as “Uncle Joe” made the following fraudulent representation to Santos: “George can you please congratulate my legally blind niece Julia on passing her driving test. They said she couldn’t do it – even shouldn’t, but she’s taught herself to be able to drive safely using her other sense. She’s not a quitter! That said, the day after she got her license, she got in a really bad car accident so if you could also wish her a speedy recovery that would be amazing. She’s in a bodycast and is a very bummed out – but with help from Jesus and President Trump, soon she will be back on the road!” (“Fake Request 4”)

e. On or about December 7, 2023, at approximately 12:26 p.m. Kimmel, misrepresenting himself as “Christian” made the following fraudulent representation to Santos:: “Hey George. My friend Heath just came out as a Furry and I’d love for you to tell him that his friends and family all accept him. His “fursona” is a platypus mixed with a beaver. He calls it a Beav-apus. Can you say we all love you Beav-a-pus? He also just got the go ahead from Arby’s corporate to go to work in the outfit so we’re all so happy for him to be himself at work and at home. Could you also do a loud “Yiff yiff yiff!”? That’s the sound Beav-a-pus makes as Beav-a-pus. Thank you so much.” (“Fake Request 5”)

The presence of a recently disgraced Congressman makes some of those videos seem newsworthy on its own, adding to the fair use argument.

As noted above, Disney has a few lawyers who understand copyright. It seems likely that Santos is going to get ripped to shreds in court.