Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 08-23-2024
Case Style:
George Santos v. James C. Kimmel, American Broadcasting Company, Inc.
Case Number: 24-CV-1210
Judge: Denise Cote
Court: United States District Court for the Southern District of New York (Manhattan County)
Plaintiff's Attorney:
Defendant's Attorney: Nathan Siegel, Eric Feder, Raphael Holoszyc-Pimentel
Description:
New York, New York personal injury lawyers represented the Plaintiff on copyright infringement, fraudulent inducement, breach of contract, and unjust infringement.
George Santos is a public figure and former member of the United States House of Representatives. In May 2023, Santos was indicted on federal charges of, inter alia, wire fraud in connection with a fraudulent political scheme, money laundering, and theft of public funds. He was expelled from Congress on December 1, 2023.
ABC is a commercial broadcast television network. Kimmel is the executive producer and host of ABC's late-night talk show Jimmy Kimmel Live! (“JKL”). Disney is the parent company of ABC.
Shortly after his expulsion from Congress, Santos created an account on www.cameo.com (“Cameo”), a website that allows fans (“Users”) to request personalized video messages from public figures and celebrities (“Talent”). Santos's Cameo account drew media attention as early as December 4, 2023. On December 6 and 7, defendants created multiple Cameo accounts using fake names, and submitted at least fourteen requests for Cameo videos from Santos using these accounts. Santos created fourteen videos in response. This litigation relates to defendants' public use of five videos on JKL.
By creating accounts on Cameo, Talent and Users agree to be bound by Cameo's Terms of Service, which are incorporated by reference in the FAC. The Terms of Service provide that by creating an account, the account holder agrees “not to create a Site account using a false identity or providing false information.” Under the Terms of Service, Users may request personalized videos from Talent and obtain a license to use those videos.
Cameo offers two types of licenses: personal use licenses and commercial use licenses. A personal use license grants the User a license
solely for your own personal, non-commercial, and non-promotional purposes, subject to these Terms: a nonexclusive, royalty-free, fully paid, worldwide, sublicensable, revocable license to use, reproduce, distribute, and publicly display that CAMEO Video, in any and all media (for example, on social media platforms), whether now known or hereafter invented or devised.
A commercial license grants “an exclusive (except as to the license granted to Cameo), royalty-free, fully paid, worldwide, sublicensable, irrevocable license to use, reproduce, distribute, and publicly display” the video on a variety of media for reasonable promotional purposes. A commercial license “specifically exclude[es], in all cases, television.”
Each video created by Talent is owned by the creator, but uploading a video grants Cameo “a non-exclusive, royalty-free, fully paid, unlimited, universal, sublicensable (through multiple tiers of sublicenses), perpetual, and irrevocable license in any and all manner and media” in that video. Each of the defendants' requested videos were subject to the personal use license restrictions.
Defendants' Cameo requests included the following:
- “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!”
- “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!”
- “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 senses. 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 very bummed out -- but with help from Jesus and President Trump, soon she will be back on the road!”
- “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-a-pus. 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 a Beav-a-pus makes as a Beav-a-pus. Thank you so much.”
Starting on December 7, Kimmel introduced a segment on JKL called “Will Santos Say It?”, which he introduced by stating that “disgraced former Congressman George Santos . . . has a new gig making videos on Cameo for $400 a pop.” Kimmel stated that this was “a dilemma because on the one hand you don't want to give your money to a guy like George Santos but on the other, pretty good chance he had your credit card information already.” Kimmel stated that he sent Santos a number of “ridiculous requests ....I didn't say they were from me I just wrote them and sent them to find out ‘Will Santos Say It.'” Kimmel then introduced three of the videos, each time asking his audience “Will Santos Say It?” before playing the video in full.
Defendants ran the segment again on December 11. Before showing the videos, Kimmel remarked that “every time [President Donald Trump] gets indicted he rakes in the cash but George Santos [is] not doing too badly himself.” Kimmel stated
I sent [Santos] 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 . . . and now he's demanding . . . to be paid a commercial rate. Could you imagine if I get sued by George Santos for fraud?
He then showed two more of the videos. Defendants posted both segments on various social media, including Youtube. On December 12, Santos sent defendants a demand letter requesting them to cease showing the videos and remove the content from social media. Defendants did refrain from posting the remaining videos, but did not remove content they had previously published on social media platforms and the defendants' website. Santos has registered each of the videos shown on JKL (the “Videos”) with the Register of Copyrights pursuant to 17 U.S.C. § 411(a).
Santos filed the initial complaint in this action on February 17, 2024, alleging copyright infringement, fraudulent inducement, breach of contract, and unjust enrichment. Following a conference on April 18, an Order of the same date set a deadline for the initial motion to dismiss and the filing of any amended complaint in response to that motion. The Order provided that it was unlikely that plaintiff would have a further opportunity to amend. The defendants moved to dismiss the initial complaint on April 29. Santos filed the FAC on May 24, adding an additional claim for breach of implied contract, and defendants renewed their motion on June 7. Defendants' motion was fully submitted on July 3.
Santos v. Kimmel, 24cv1210 (DLC) (S.D. N.Y. Aug 19, 2024)
Outcome: Motion to dismiss granted.
Plaintiff's Experts:
Defendant's Experts:
Comments: