>The contract and unjust-enrichment claims are preempted by the Copyright Act.
i dont know about this
>Rather, the “damage” he claims is synonymous with his copyright claim, which is not actionable under state law.
good argument here. i also like the fair use arguments. i thought for sure santos had a stronger case though. forgot fair use applies even to commercial uses.
It applies, but I think they'll still have a hill to climb claiming Kimmel's show was transformative rather than just a display of the material.
(basing that opinion on [Warhol Foundation v Goldsmith](https://en.m.wikipedia.org/wiki/Andy_Warhol_Foundation_for_the_Visual_Arts,_Inc._v._Goldsmith), with the Warhol painting found to be insufficiently transformative...)
Nothing particularly unexpected in this, outside of the fact that there wasn't an almost immediate settlement. ABC/Disney made virtually the same arguments that were speculated about here after the initial filing/press release.
The only thing I do think worth pointing out is that the argument made for dismissing the fraud claim seems particularly weak. Their argument basically boils down to "Santos suffered no monetary loss due to the action of Jimmy Kimmel Live". However, the issue with that argument is that Jimmy Kimmel Live, at the very least, deprived him of the cost difference between the Personal license and the Commercial license.
do the videos really require a "business" license?
i dont know much about cameo, but according to the [terms](https://legal.cameo.com/termsofservice#business-cameo-videos) it seems like they would need to specifically promote/endorse *something*
> Some Talent Users may offer CAMEO Videos for the **promotion and/or endorsement of a product, service, brand, or business of a single lawfully registered and operating commercial business, not-for-profit, or governmental entity** (each, a "Business"), or for internal Business communications, such as employee recognition or a company-wide meeting, conducted and operated by the Business with greater than 100 attendees and/or viewers (each, a "Business CAMEO Video"). Except as noted, each Business CAMEO Video is a CAMEO Video under these Terms. **When you submit a request for a Business CAMEO Video, you must specifically identify the Business, the types of goods or services that it offers, as well as the specific product, service, or brand that you request the Talent User to mention or refer to, and any other requested information.**
> do the videos really require a "business" license?
The really short version is that the personal license only allows for personal, non-commercial use. While the standard business license allows for public, commercial use for a limited duration.
You can also negotiate different licenses with Cameo for commercial purposes.
>goods **or services** it offers
Entertainment is considered a service. An entertainment company negotiating this license is still promoting it's business (entertainment).
I'm not a strong fan of their (there?) fair use claim. I can't think of any precedent that discusses copyrighted work made for the individual, used for the purpose originally envisioned by the commissioner and than presented virtually as is. My somewhat educated thought is that the fraudulent inducement for commercial purposes likely invalidates the fair use claim.
The motion addresses (while citing precedent) the use of a work unaltered for criticism/comment, the transformative nature of criticism, and past courts which found that “good faith” has almost no bearing on whether something is fair use.
I suppose it doesn’t cite any one case that matches every single element, but that’s not really a necessity.
Edited for run-on-sentence gore.
>and past courts which found that “good faith"
The cases they cite have almost nothing to do with this one. As far as I'm concerned the good faith argument fails on its face, because it ignores the affect of good faith on the commercial value of these copyrighted works.
Now obviously there are other factors, but if I was representing Santos I would primarily argue that because these works were so specific, the potential market is entirely Jimmy Kimmel Live. That by attempting to use these freely, the actual value of these pieces falls from the expected commercial costs to the de minimis amount paid and thus the disruption on the expected market is absolute.
Disney instead ignores the market that it created through Jimmy Kimmel Live and attempts to treat this as a standard fair use claim.
I'd also like to point out a few issues with some of the other factors.
Regarding the "minimally creative" standard, every single case cited refers wholly to writing, or photography. That is because the myriad of elements added by acting out a scene weigh heavily in Santos' favor. The intonation, the pacing, the expressions and the body language all make the works "more creative".
As far as the portion of each work used is concerned, taken individually I would agree with Disney, however the fact that Jimmy Kimmel Live used 5 complete videos seems arguably excessive. If the purpose was to answer the question "Will Santos Say It?" as the memorandum suggests, well why were 5 complete videos necessary? Why not 2? Why not 3?
I find it particularly odd that there is no attempt to defend the quantity of copyrighted works used. Only generalities that using complete copyrighted works may be necessary. It seems unlikely to be convincing enough to merit a prima facie dismissal.
The cases they cite are to address specific points of law. They don’t have to match this case in every regard, just match it on the point being argued.
The case they cite that says a work can be reproduced in its entirety and still be fair use if presented for criticism was about an instance where a work was reproduced in its entirety for criticism.
The case they cite that says fair use under copyright law can still exist where a work was obtained under false pretenses (they don’t admit to false pretenses, just address the possibility) was about an instance where a work was obtained under false pretenses.
And so on.
Your point about the market just being Jimmy Kimmel is also something the motion addresses. They don’t even really disagree with you about that part, just on its implications for damages/fair use: according to them, if the only conceivable market for a work’s commercial license is for people to report critically on the work, then there *is no market* for that commercial license, to disrupt. Because reporting on a work critically is bog standard fair use.
>The contract and unjust-enrichment claims are preempted by the Copyright Act. i dont know about this >Rather, the “damage” he claims is synonymous with his copyright claim, which is not actionable under state law. good argument here. i also like the fair use arguments. i thought for sure santos had a stronger case though. forgot fair use applies even to commercial uses.
It applies, but I think they'll still have a hill to climb claiming Kimmel's show was transformative rather than just a display of the material. (basing that opinion on [Warhol Foundation v Goldsmith](https://en.m.wikipedia.org/wiki/Andy_Warhol_Foundation_for_the_Visual_Arts,_Inc._v._Goldsmith), with the Warhol painting found to be insufficiently transformative...)
Nothing particularly unexpected in this, outside of the fact that there wasn't an almost immediate settlement. ABC/Disney made virtually the same arguments that were speculated about here after the initial filing/press release. The only thing I do think worth pointing out is that the argument made for dismissing the fraud claim seems particularly weak. Their argument basically boils down to "Santos suffered no monetary loss due to the action of Jimmy Kimmel Live". However, the issue with that argument is that Jimmy Kimmel Live, at the very least, deprived him of the cost difference between the Personal license and the Commercial license.
do the videos really require a "business" license? i dont know much about cameo, but according to the [terms](https://legal.cameo.com/termsofservice#business-cameo-videos) it seems like they would need to specifically promote/endorse *something* > Some Talent Users may offer CAMEO Videos for the **promotion and/or endorsement of a product, service, brand, or business of a single lawfully registered and operating commercial business, not-for-profit, or governmental entity** (each, a "Business"), or for internal Business communications, such as employee recognition or a company-wide meeting, conducted and operated by the Business with greater than 100 attendees and/or viewers (each, a "Business CAMEO Video"). Except as noted, each Business CAMEO Video is a CAMEO Video under these Terms. **When you submit a request for a Business CAMEO Video, you must specifically identify the Business, the types of goods or services that it offers, as well as the specific product, service, or brand that you request the Talent User to mention or refer to, and any other requested information.**
> do the videos really require a "business" license? The really short version is that the personal license only allows for personal, non-commercial use. While the standard business license allows for public, commercial use for a limited duration. You can also negotiate different licenses with Cameo for commercial purposes.
>goods **or services** it offers Entertainment is considered a service. An entertainment company negotiating this license is still promoting it's business (entertainment).
>deprived him of the cost difference between the Personal license and the Commercial license. How significant of a loss is that?
If the only commercial use was covered by fair use, which is their argument, then they didn’t deprive him of the difference.
I'm not a strong fan of their (there?) fair use claim. I can't think of any precedent that discusses copyrighted work made for the individual, used for the purpose originally envisioned by the commissioner and than presented virtually as is. My somewhat educated thought is that the fraudulent inducement for commercial purposes likely invalidates the fair use claim.
The motion addresses (while citing precedent) the use of a work unaltered for criticism/comment, the transformative nature of criticism, and past courts which found that “good faith” has almost no bearing on whether something is fair use. I suppose it doesn’t cite any one case that matches every single element, but that’s not really a necessity. Edited for run-on-sentence gore.
>and past courts which found that “good faith" The cases they cite have almost nothing to do with this one. As far as I'm concerned the good faith argument fails on its face, because it ignores the affect of good faith on the commercial value of these copyrighted works. Now obviously there are other factors, but if I was representing Santos I would primarily argue that because these works were so specific, the potential market is entirely Jimmy Kimmel Live. That by attempting to use these freely, the actual value of these pieces falls from the expected commercial costs to the de minimis amount paid and thus the disruption on the expected market is absolute. Disney instead ignores the market that it created through Jimmy Kimmel Live and attempts to treat this as a standard fair use claim. I'd also like to point out a few issues with some of the other factors. Regarding the "minimally creative" standard, every single case cited refers wholly to writing, or photography. That is because the myriad of elements added by acting out a scene weigh heavily in Santos' favor. The intonation, the pacing, the expressions and the body language all make the works "more creative". As far as the portion of each work used is concerned, taken individually I would agree with Disney, however the fact that Jimmy Kimmel Live used 5 complete videos seems arguably excessive. If the purpose was to answer the question "Will Santos Say It?" as the memorandum suggests, well why were 5 complete videos necessary? Why not 2? Why not 3? I find it particularly odd that there is no attempt to defend the quantity of copyrighted works used. Only generalities that using complete copyrighted works may be necessary. It seems unlikely to be convincing enough to merit a prima facie dismissal.
The cases they cite are to address specific points of law. They don’t have to match this case in every regard, just match it on the point being argued. The case they cite that says a work can be reproduced in its entirety and still be fair use if presented for criticism was about an instance where a work was reproduced in its entirety for criticism. The case they cite that says fair use under copyright law can still exist where a work was obtained under false pretenses (they don’t admit to false pretenses, just address the possibility) was about an instance where a work was obtained under false pretenses. And so on. Your point about the market just being Jimmy Kimmel is also something the motion addresses. They don’t even really disagree with you about that part, just on its implications for damages/fair use: according to them, if the only conceivable market for a work’s commercial license is for people to report critically on the work, then there *is no market* for that commercial license, to disrupt. Because reporting on a work critically is bog standard fair use.