Plaintiffs pursuing copyright infringement claims often must overcome a defendant’s affirmative defense of “fair use.” However, plaintiffs who also bring a breach of contract claim for violations of a website’s terms of use may also have to clear the Copyright Act’s preemption of state law to succeed.
The recent dismissal of former U.S. Representative George Santos’s claims against late night comedian Jimmy Kimmel, host of “Jimmy Kimmel Live!” and ABC network in Santos v. Kimmel, et al., is a case on point.
As background, Santos had created an account on the website www.cameo.com (“Cameo”) which allows users of the website to request personal video messages from public figures. Using fake names, defendants created Cameo accounts and requested absurd video messages from Santos using these accounts. Kimmel aired some of the videos on his show, broadcast on ABC. Santos was not amused and filed a complaint against Kimmel and ABC alleging copyright infringement, fraudulent inducement, unjust enrichment, and breach of contract.
The New York federal court found that defendants’ use of the videos was “fair use” under the Copyright Act’s four-factor analysis. 17 U.S.C. §107. The court also rejected Santos's claims of fraudulent inducement because he failed to allege any monetary loss as a result of the alleged fraudulent inducement.
The court then turned to plaintiff’s breach of contract claims. Santos asserted that defendants had breached the licenses granted to them under Cameo’s Terms of Service by failing to pay the required amount for use of the videos and by using fake information to create the accounts. Defendants argued that these claims were preempted by the Copyright Act.
The court acknowledged that “the Copyright Act preempts state law claims asserting rights equivalent to those protected within the general scope of the statute.” 17 U.S.C. §301 (a). The court agreed that preemption applied, concluding that plaintiff’s claims were, in essence, that defendants’ use of the videos exceeded the scope of the licenses they purchased, and that Santos was really seeking to enforce “the right to publicly ‘perform’ his copyrighted works. 17 U.S.C. 106 (4).” “In other words, [Santos’s] claims are in no meaningful fashion distinguishable from infringement of copyright.” The court then dismissed the breach of express and implied contract claims.
This case is a reminder that a plaintiff attempting to piggy-back a breach of a website’s Terms of Use claim with a copyright infringement claim needs to be mindful of the Copyright Act’s preemptive powers when crafting their complaint.
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