Disney’s Lawyers Successfully Defended Jimmy Kimmel (About Fair Use, Not His Free Speech Mocking Trump)

Updating the updating: I started writing this post last Tuesday, but put it on hold when everything happened last Wednesday, and rewrote it this weekend to post today, only now as I was getting ready to post it, seeing that Disney has reinstated Jimmy Kimmel, so... yeah. I'm only making a minor update to deal with that new bit of info, as this is mostly the post I had written this weekend.

So, last Monday, there was some news about Jimmy Kimmel and a famously untruthful Republican politician. So I started to write a blog post about it. Monday. I know, I know, you're thinking of what happened on Wednesday, in which Donald Trump's FCC chair Brendan Carr violated the First Amendment and issued threats to Disney and its affiliates if they didn't punish Jimmy Kimmel for his mocking of Donald Trump*.

* Sure, they claimed it was about what he said about Charlie Kirk's killer, but no one actually believes that-and it's hilarious now to see a bunch of silly people, including Trump try to retcon that the dismissal has anything to do with Kimmel's popularity, when they literally pulled the show off air while he was in his studio to tape, and just hours after Carr's threat, and now that Kimmel is going back on the air less than a week later it's double clear it has nothing to do with Kimmel's popularity.

But that Monday story is still worth telling, because it involves one of the more delicious ironies in recent copyright law: Disney successfully defending fair use. You may recall that George Santos-the famously untruthful former congressman-had sued Kimmel and Disney after Kimmel secretly commissioned some wonderfully absurd Santos Cameo videos for a segment called Will Santos Say It?" Santos's legal theory was that Kimmel's deception meant this was commercial rather than personal use, violating the Cameo license terms.

At the time, we pointed out that was nonsense, and the use here would clearly qualify as fair use, and the district court agreed. So this is the follow up to that, which is that the Second Circuit has affirmed what should have been obvious from the start: Jimmy Kimmel's use of George Santos' Cameo videos was clearly fair use.

The analysis is refreshingly straightforward. On the crucial first factor-whether the use was transformative-the court noted that while Santos intended his videos to convey feelings of hope, strength, perseverance, encouragement, and positivity," what matters is what a reasonable observer would think, not the subjective intentions of either party:

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.

Santos tried to argue that Kimmel's deception in requesting the videos somehow negated fair use, but the court wasn't buying it:

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 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.

The market harm analysis was equally devastating to Santos' case:

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."

Kimmel wasn't setting up a competing Cameo service for disgraced politicians; he was mocking Santos's willingness to say anything for money. If anything, all the publicity probably helped Santos's business model.

Now, the truly eye-opening part of this story is watching Disney-Disney!-mount an aggressive fair use defense. This is the same company that spent decades systematically destroying fair use through lobbying, litigation, and the occasional threat. The same Disney that gave us the Sonny Bono Copyright Term Extension Act (aka the Mickey Mouse Protection Act"). The same Disney that has historically treated fair use" like profanity.

But here's Santos with his silly copyright lawsuit, and suddenly Disney's legal team morphs into EFF. They're filing briefs about the vital importance of commentary and criticism, the transformative nature of parody, the essential role of fair use in protecting free speech.

Also worth calling out was that the Second Circuit also rejected Santos' argument that the case was too complex for dismissal at the pleading stage, noting that fair use can be so clearly established by a complaint as to support dismissal of a copyright infringement claim." This matters more than it might sound: many courts treat fair use like it's always a jury question, an issue of fact that a judge can't decide without a full trial. But that completely defeats the purpose. Fair use is supposed to protect legitimate speech from copyright trolling. If you have to survive years of litigation and spend hundreds of thousands of dollars to vindicate your fair use rights, you don't really have fair use rights at all. The old joke is fair use is your right to hire a lawyer," but having courts dump these frivolous lawsuits helps reinforce fair use.

The court also dismissed Santos' state law claims for breach of contract and fraudulent inducement, finding they either failed to state valid claims or were barred by other legal doctrines.

The real lesson here isn't just that Santos filed a silly lawsuit (though he did). It's that fair use works when courts apply it correctly, protecting legitimate commentary and criticism from copyright abuse. The irony that this particular defense came from Disney's legal team only makes it sweeter. Apparently even the Death Star occasionally uses its power for good.

Too bad Disney's (surprising) strong support for Kimmel's fair use rights didn't carry over two days later when Trump's FCC chair threatened the company over Kimmel's First Amendment-protected criticism of the President, even if they came around and reversed their position today. Apparently defending fair use against a serial fabulist is easier work than defending free speech against an authoritarian-even for the Mouse that has never met a legal fight it wouldn't pick.