From Santos v. Kimmel, decided today by Second Circuit Judge Raymond Lohier, joined by Judges José Cabranes and Richard Sullivan:
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?" …
[1.] 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."
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." … Santos does not dispute the District Court's finding that the purpose of [Kimmel's] allegedly infringing use was "to comment on the willingness of Santos … to say absurd things for money." He argues instead that this was also his original purpose in making the videos.
