Of course, the big Jimmy Kimmel news is that his talk show, “Jimmy Kimmel Live!”, was pulled off the air by ABC/Disney on September 17, and then restored on September 24.
As the New York Times reported,
[ABC/Disney] made the move after growing criticism, including by a top federal regulator, over comments he made during his show about the man accused of fatally shooting the conservative activist Charlie Kirk. The show’s suspension set off a national debate about free speech.
As the Times noted,
Tuesday’s episode of “Jimmy Kimmel Live!” averaged 6.2 million viewers, according to preliminary figures from Nielsen. That is nearly four times as much as his usual audience, even though more than 20 percent of ABC affiliates boycotted the show.
The YouTube video of his returning monologue attracted more than 20 million views.
But there’s also IP-related news about Kimmel and his show.
Shortly before the show went off the air, the Second Circuit issued a ruling in Santos v. Kimmel affirming the Southern District of New York’s dismissal of copyright infringement and state law claims filed by disgraced former US Representative George Santos against Kimmel.
Santos pleaded guilty to identity theft and wire fraud in 2024 and was sentenced to 87 months in prison.
As the BBC reported,
After his sentencing in April, Santos attempted to raise money on Cameo, a platform where people can purchase personalised videos from celebrities.
As the Circuit court explained,
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?”
As the court explained,
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 Act is meant to promote.” …
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, courts “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.”
Santos didn’t 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.”
Santos contended that Kimmel’s false representations demonstrated bad faith and thus nullified the fair use defense.
The court disagreed, saying,
It is true that “[f]air use presupposes good faith and fair dealing.” … But Santos’s complaint contradicts any claim of a purpose on the Defendants’ part to “supplant” Santos’s “commercially valuable right” in the videos….
To the contrary, the complaint paints a portrait of defendants motivated by (sarcastic) criticism and commentary. …We thus agree with the District Court that the first factor strongly supports a finding of fair use.
Also, said the court,
…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.”
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