On September 30, Michael Garfinkel and Matthew Wallace published “Kimmel 2nd Circ. Victory Holds Novel Copyright Lessons” in Law360. The following is an excerpt:
On Sept. 15, late night comedy scored a victory in George Santos v. James C. Kimmel in the U.S. Court of Appeals for the Second Circuit.
The court affirmed the U.S. District Court for the Southern District of New York's application of the fair use defense to dismiss a copyright infringement claim against Jimmy Kimmel arising out of a segment that aired on "Jimmy Kimmel Live!"
Kimmel mockingly posed a simple question: Would former U.S. Rep. George Santos take $400 to record a video on the Cameo platform delivering an absurd message Kimmel sent him under a fake name?
Spoiler alert: Santos did, repeatedly, giving rise to the recurring JKL segment titled "Will Santos Say It?" Santos did not see the humor and sued.
In affirming the dismissal of Santos' claims, the Second Circuit issued a short, straightforward opinion that belies the novelty of this fact pattern. As expected, the court applied the U.S. Supreme Court's 2023 decision in Warhol v. Goldsmith, as well as its own 2013 decision in Cariou v. Prince.
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