24-2196-cv Santos v. Kimmel
United States Court of Appeals For the Second Circuit August Term, 2024
(Argued: March 24, 2025 Decided: September 15, 2025)
Docket No. 24-2196-cv _____________________________________
GEORGE SANTOS,
Plaintiff-Appellant,
v.
JAMES C. KIMMEL, AKA JIMMY KIMMEL, AMERICAN BROADCASTING COMPANIES, INC., THE WALT DISNEY COMPANY,
Defendants-Appellees. _____________________________________ Before:
CABRANES, LOHIER, and SULLIVAN, Circuit Judges.
Former Congressman George Santos sued late-night show host Jimmy Kimmel and the companies that own and broadcast Kimmel’s show, Jimmy Kimmel Live!, for copyright infringement and state law breach of contract and fraudulent inducement. The suit arose after Kimmel, using various fictitious names, submitted requests to Santos for personalized videos through the Cameo platform. Santos fulfilled each request, and Kimmel then aired some of the videos on his show as part of a series of segments titled “Will Santos Say It?” 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 that the state law claims either were preempted by the Copyright Act or failed to state a claim. Because we agree that Santos’s copyright claims were barred by the fair use doctrine and further conclude that each of Santos’s state law claims failed to state a claim, we AFFIRM.
ROBERT M. FANTONE, Mancilla & Fantone, LLP, New York, NY (Andrew Mancilla, Mancilla & Fantone, LLP, New York, NY, Joseph W. Murray, Great Neck, NY, on the brief), for Plaintiff-Appellant.
NATHAN SIEGEL, Davis Wright Tremaine LLP, Washington, DC (Eric J. Feder, Davis Wright Tremaine LLP, Washington, DC, Raphael Holoszyc-Pimentel, Davis Wright Tremaine LLP, New York, NY, on the brief), for Defendants-Appellees.
LOHIER, Circuit Judge:
Former Congressman George Santos appeals from a final judgment of the
United States District Court for the Southern District of New York (Cote, J.)
dismissing his copyright infringement and state law claims against Jimmy
Kimmel, American Broadcasting Companies, Inc. (“ABC”), which airs Kimmel’s
late-night show Jimmy Kimmel Live! (“JKL”), and ABC’s parent company, The
Walt Disney Company. Santos’s suit arose after Kimmel, using various fictitious
names, submitted requests to Santos for personalized videos through the Cameo
platform. Santos fulfilled each request, and Kimmel then aired the videos on JKL
as part of a mocking series of segments titled “Will Santos Say It?” The District
Court dismissed the complaint for failure to state a claim under Rule 12(b)(6) of
2 the Federal Rules of Civil Procedure, concluding that the copyright claims were
barred by the fair use doctrine and that Santos’s state law claims either were
preempted by the Copyright Act or failed to state a claim. Because we agree that
Santos’s copyright claims were barred by the fair use doctrine and further
conclude that each of Santos’s state law claims failed to state a claim, we affirm.
DISCUSSION
We review de novo the District Court’s dismissal of Santos’s complaint
under Rule 12(b)(6). DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 110 (2d Cir.
2010). We consider “the facts alleged in the complaint, documents attached to
the complaint as exhibits, and documents incorporated by reference in the
complaint.” Id. at 111. In doing so, we may also take judicial notice of
“copyright registrations[] as published in the Copyright Office’s registry.” Island
Software & Comput. Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 261 (2d Cir. 2005);
see also TCA Television Corp. v. McCollum, 839 F.3d 168, 172 (2d Cir. 2016).
I. Copyright Infringement and Fair Use
In a copyright action, the affirmative defense of fair use “excuses what
might otherwise be considered infringing behavior, allowing courts to avoid
rigid application of the Copyright Act when it would stifle the very creativity the
3 Act is meant to promote.” Hachette Book Grp., Inc. v. Internet Archive, 115 F.4th
163, 179 (2d Cir. 2024) (quotation marks omitted). Under the Copyright Act, we
consider the following non-exclusive factors in determining whether fair use has
been established: “(1) the purpose and character of the use . . . ; (2) the nature of
the copyrighted work; (3) the amount and substantiality of the portion used . . . ;
and (4) the effect of the use upon the potential market for or value of the
copyrighted work.” 17 U.S.C. § 107.
In assessing the “purpose and character of the use” factor, we “focus[]
chiefly on the degree to which the use is transformative, i.e., whether the new
work merely supersedes the objects of the original creation, or instead adds
something new, with a further purpose or different character.” Andy Warhol
Found. for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26, 37 (2d Cir. 2021) (quotation
marks omitted). Our focus reflects an understanding that “fair use is a flexible
concept, whose application varies depending on the context.” Hachette Book Grp.,
115 F.4th at 179 (quotation marks omitted). It may be “so clearly established by a
complaint as to support dismissal of a copyright infringement claim” at the
pleading stage. TCA Television Corp., 839 F.3d at 178.
4 Addressing the “purpose and character of the use” factor, Santos
maintains that the use was not transformative because Kimmel “instigated the
creation of the original Works” and accordingly is the “designer[]” of their
original purpose. Appellant’s Br. 11. Santos does not dispute the District Court’s
finding that the purpose of the allegedly infringing use was “to comment on the
willingness of Santos . . . to say absurd things for money.” App’x 235. He argues
instead that this was also his original purpose in making the videos. But whether
a secondary use is transformative turns on what a reasonable observer thinks,
not the subjective intent of the copyright holder or that of the secondary user.
See Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 544 (2023)
(“[T]he subjective intent of the user (or the subjective interpretation of a court)
[does not] determine the purpose of the use.”). As Santos’s original allegation
acknowledges, a reasonable observer here would think the videos conveyed
“feelings of hope, strength, perseverance, encouragement, and positivity,” not a
willingness to say absurd things for money. App’x 15.
Santos also contends that Kimmel’s false representations demonstrate bad
faith and thus nullify the fair use defense. See Harper & Row Publishers, Inc. v.
Nation Enters., 471 U.S. 539, 562–63 (1985). We disagree. It is true that “[f]air use
5 presupposes good faith and fair dealing.” Id. at 562 (quotation marks omitted).
But Santos’s complaint contradicts any claim of a purpose on the Defendants’
part to “supplant” Santos’s “commercially valuable right” in the videos. Swatch
Grp. Mgmt. Servs. Ltd. v.
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24-2196-cv Santos v. Kimmel
United States Court of Appeals For the Second Circuit August Term, 2024
(Argued: March 24, 2025 Decided: September 15, 2025)
Docket No. 24-2196-cv _____________________________________
GEORGE SANTOS,
Plaintiff-Appellant,
v.
JAMES C. KIMMEL, AKA JIMMY KIMMEL, AMERICAN BROADCASTING COMPANIES, INC., THE WALT DISNEY COMPANY,
Defendants-Appellees. _____________________________________ Before:
CABRANES, LOHIER, and SULLIVAN, Circuit Judges.
Former Congressman George Santos sued late-night show host Jimmy Kimmel and the companies that own and broadcast Kimmel’s show, Jimmy Kimmel Live!, for copyright infringement and state law breach of contract and fraudulent inducement. The suit arose after Kimmel, using various fictitious names, submitted requests to Santos for personalized videos through the Cameo platform. Santos fulfilled each request, and Kimmel then aired some of the videos on his show as part of a series of segments titled “Will Santos Say It?” 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 that the state law claims either were preempted by the Copyright Act or failed to state a claim. Because we agree that Santos’s copyright claims were barred by the fair use doctrine and further conclude that each of Santos’s state law claims failed to state a claim, we AFFIRM.
ROBERT M. FANTONE, Mancilla & Fantone, LLP, New York, NY (Andrew Mancilla, Mancilla & Fantone, LLP, New York, NY, Joseph W. Murray, Great Neck, NY, on the brief), for Plaintiff-Appellant.
NATHAN SIEGEL, Davis Wright Tremaine LLP, Washington, DC (Eric J. Feder, Davis Wright Tremaine LLP, Washington, DC, Raphael Holoszyc-Pimentel, Davis Wright Tremaine LLP, New York, NY, on the brief), for Defendants-Appellees.
LOHIER, Circuit Judge:
Former Congressman George Santos appeals from a final judgment of the
United States District Court for the Southern District of New York (Cote, J.)
dismissing his copyright infringement and state law claims against Jimmy
Kimmel, American Broadcasting Companies, Inc. (“ABC”), which airs Kimmel’s
late-night show Jimmy Kimmel Live! (“JKL”), and ABC’s parent company, The
Walt Disney Company. Santos’s suit arose after Kimmel, using various fictitious
names, submitted requests to Santos for personalized videos through the Cameo
platform. Santos fulfilled each request, and Kimmel then aired the videos on JKL
as part of a mocking series of segments titled “Will Santos Say It?” The District
Court dismissed the complaint for failure to state a claim under Rule 12(b)(6) of
2 the Federal Rules of Civil Procedure, concluding that the copyright claims were
barred by the fair use doctrine and that Santos’s state law claims either were
preempted by the Copyright Act or failed to state a claim. Because we agree that
Santos’s copyright claims were barred by the fair use doctrine and further
conclude that each of Santos’s state law claims failed to state a claim, we affirm.
DISCUSSION
We review de novo the District Court’s dismissal of Santos’s complaint
under Rule 12(b)(6). DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 110 (2d Cir.
2010). We consider “the facts alleged in the complaint, documents attached to
the complaint as exhibits, and documents incorporated by reference in the
complaint.” Id. at 111. In doing so, we may also take judicial notice of
“copyright registrations[] as published in the Copyright Office’s registry.” Island
Software & Comput. Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 261 (2d Cir. 2005);
see also TCA Television Corp. v. McCollum, 839 F.3d 168, 172 (2d Cir. 2016).
I. Copyright Infringement and Fair Use
In a copyright action, the affirmative defense of fair use “excuses what
might otherwise be considered infringing behavior, allowing courts to avoid
rigid application of the Copyright Act when it would stifle the very creativity the
3 Act is meant to promote.” Hachette Book Grp., Inc. v. Internet Archive, 115 F.4th
163, 179 (2d Cir. 2024) (quotation marks omitted). Under the Copyright Act, we
consider the following non-exclusive factors in determining whether fair use has
been established: “(1) the purpose and character of the use . . . ; (2) the nature of
the copyrighted work; (3) the amount and substantiality of the portion used . . . ;
and (4) the effect of the use upon the potential market for or value of the
copyrighted work.” 17 U.S.C. § 107.
In assessing the “purpose and character of the use” factor, we “focus[]
chiefly on the degree to which the use is transformative, i.e., whether the new
work merely supersedes the objects of the original creation, or instead adds
something new, with a further purpose or different character.” Andy Warhol
Found. for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26, 37 (2d Cir. 2021) (quotation
marks omitted). Our focus reflects an understanding that “fair use is a flexible
concept, whose application varies depending on the context.” Hachette Book Grp.,
115 F.4th at 179 (quotation marks omitted). It may be “so clearly established by a
complaint as to support dismissal of a copyright infringement claim” at the
pleading stage. TCA Television Corp., 839 F.3d at 178.
4 Addressing the “purpose and character of the use” factor, Santos
maintains that the use was not transformative because Kimmel “instigated the
creation of the original Works” and accordingly is the “designer[]” of their
original purpose. Appellant’s Br. 11. Santos does not dispute the District Court’s
finding that the purpose of the allegedly infringing use was “to comment on the
willingness of Santos . . . to say absurd things for money.” App’x 235. He argues
instead that this was also his original purpose in making the videos. But whether
a secondary use is transformative turns on what a reasonable observer thinks,
not the subjective intent of the copyright holder or that of the secondary user.
See Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 544 (2023)
(“[T]he subjective intent of the user (or the subjective interpretation of a court)
[does not] determine the purpose of the use.”). As Santos’s original allegation
acknowledges, a reasonable observer here would think the videos conveyed
“feelings of hope, strength, perseverance, encouragement, and positivity,” not a
willingness to say absurd things for money. App’x 15.
Santos also contends that Kimmel’s false representations demonstrate bad
faith and thus nullify the fair use defense. See Harper & Row Publishers, Inc. v.
Nation Enters., 471 U.S. 539, 562–63 (1985). We disagree. It is true that “[f]air use
5 presupposes good faith and fair dealing.” Id. at 562 (quotation marks omitted).
But Santos’s complaint contradicts any claim of a purpose on the Defendants’
part to “supplant” Santos’s “commercially valuable right” in the videos. Swatch
Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 83 (2d Cir. 2014) (quotation
marks omitted). To the contrary, the complaint paints a portrait of defendants
motivated by (sarcastic) criticism and commentary. See Authors Guild v. Google,
Inc., 804 F.3d 202, 215–16 (2d Cir. 2015). We thus agree with the District Court
that the first factor strongly supports a finding of fair use.
We are equally unpersuaded by Santos’s challenges to the District Court’s
analysis of the remaining factors. Among other things, the relevant copyright
registrations establish that the videos were published on the same day they were
created. See App’x 160–69; 17 U.S.C. § 101. And it is clear on the face of Santos’s
complaint that Santos has not suffered market harm within the meaning of the
fourth fair use factor because “[w]e ask not whether the second work would
damage the market for the first (by, for example, devaluing it through parody or
criticism), but whether it usurps the market for the first by offering a competing
substitute.” Hachette Book Grp., 115 F.4th at 189 (quotation marks omitted); see
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 592 (1994) (“[T]he unlikelihood
6 that creators of imaginative works will license critical reviews or lampoons of
their own productions removes such uses from the very notion of a potential
licensing market.”).
Because we need only consider “the original version of [the videos] and
the [JKL segments] at issue” to decide “the question of fair use,” Cariou v. Prince,
714 F.3d 694, 707 (2d Cir. 2013) (quotation marks omitted), we affirm the District
Court’s conclusion that fair use bars Santos’s copyright claims even at the
pleading stage.
II. State Law Claims
Santos also appeals the District Court’s dismissal of his state law claims for
breach of contract, breach of implied contract, and fraudulent inducement. The
District Court dismissed the first two state law claims on the ground that they
were preempted by the Copyright Act. Santos responds that those claims are
“qualitatively different from a copyright infringement claim” and thus not
preempted. Melendez v. Sirius XM Radio, Inc., 50 F.4th 294, 302 (2d Cir. 2022)
(quotation marks omitted). We need not resolve this issue, however, because
Santos’s state law contract claims fail to state a claim for relief under state law.
We first address Santos’s direct breach of contract claim under the Cameo
7 Terms of Service. Santos is not party to the Terms of Service to which users (like
Kimmel) must agree and that Santos alleges were breached. Under Illinois law,
which governs the Terms of Service, there is a “strong presumption against
conferring benefits to noncontracting third parties.” Barry v. St. Mary’s Hosp.
Decatur, 68 N.E.3d 964, 976 (Ill. App. Ct. 2016). Indeed, “the implication that the
contract applies to third parties must be so strong as to be practically an express
declaration.” Id. (quotation marks omitted). Here, Santos identifies nothing
close to an “express declaration” that the relevant provisions of the Terms of
Service apply to him or other noncontracting parties. Indeed, other provisions of
the Terms of Service do contain third-party beneficiary language, indicating that
when the parties to that agreement intended to allow provisions of the contract
to be enforced by third parties, they said so expressly.
We next address Santos’s breach of implied contract claim. Under New
York law, which governs this claim, we consider “the intent of the parties and
the surrounding circumstances” to determine “[w]hether an implied-in-fact
contract was formed and, if so, the extent of its terms.” Rocky Point Props., Inc. v.
Sear-Brown Grp., Inc., 744 N.Y.S.2d 269, 271 (4th Dep’t 2002) (quotation marks
omitted). In this case, however, Santos’s complaint does not “allege, in
8 nonconclusory language, . . . the essential terms of the parties’ . . . contract,
including those specific provisions of the contract upon which liability is
predicated.” Caniglia v. Chi. Trib.-N.Y. News Syndicate, Inc., 612 N.Y.S.2d 146, 147
(1st Dep’t 1994); see App’x 22 ¶¶ 78-79 (failing to plead the essential terms of the
putative implied contract that the Defendants allegedly breached). Nor does
Santos plausibly allege that there was “an indication of a meeting of minds of the
parties constituting an agreement” that Kimmel would adhere to the Terms of
Service. DG & A Mgmt. Servs., LLC v. Secs. Indus. Ass’n Compliance & Legal Div.,
859 N.Y.S.2d 305, 306 (3d Dep’t 2008) (quotation marks omitted); see also Tjoa v.
Julia Butterfield Mem’l Hosp., 612 N.Y.S.2d 676, 677 (2d Dep’t 1994).
Finally, Santos challenges the District Court’s dismissal of his fraudulent
inducement claim for failure to allege any out-of-pocket loss as required under
New York law. See Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 421
(1996). We agree with the District Court’s conclusion that Santos failed to allege
that he suffered any actual out-of-pocket loss as the victim of the alleged fraud.
See Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 142–43 (2017). We
therefore affirm the District Court’s dismissal of that claim.
9 CONCLUSION
We have considered Santos’s remaining arguments and conclude that they
are without merit. For the foregoing reasons, we AFFIRM the judgment of the
District Court.