Tension Between Fair Use Doctrine and Right to Publicity

This post explores how social media platforms, such as Cameo, have created tension between celebrities and public figures’ rights to monetize their image and control their public personas with the audience’s right to critique and comment on them under the Copyright Act’s Fair Use doctrine.

Platforms like Cameo, which allow users to pay celebrities in exchange for personalized videos, have transformed the way public figures monetize their image and identity. It has reshaped digital self-monetization by turning personality and expression into a lucrative product. Because these Cameo videos are made by celebrities and influencers alike, it is common that their recipients share the videos across social media platforms, where millions of people can view and engage with them. Courts are now increasingly confronting tensions between the right of publicity, which protects individuals’ control over their name, image, and likeness in commercial contexts, and the fair use doctrine under the Copyright Act, which establishes protections for secondary uses of copyrighted works that are transformative. 

In late 2023, Jimmy Kimmel, the host of the late-night talk show “Jimmy Kimmel Live,” created fake profiles on Cameo, and sent multiple, out-of-pocket requests to George Santos, the embattled U.S. Congressman. Kimmel then aired these videos on separate occasions, in a satirical segment called “Will Santos Say It?”, suggesting that Santos will say anything for money, which is humorous given Santos’ alleged fraud. Clips of this segment were then posted by the talk-show on various social media platforms, such as TikTok and YouTube, receiving millions of views. Following the airing of this segment, George Santos registered these videos with the Register of Copyrights. Complaint ¶ 38, Santos v. Kimmel, No. 1:2024-cv-01210-DLC (S.D.N.Y. 2024).  

While facing numerous charges such as wire fraud, conspiracy, theft, and money laundering, George Santos filed a lawsuit against Jimmy Kimmel, American Broadcasting Companies, Inc., and the Walt Disney Company for copyright infringement, fraudulent inducement, breach of contract, breach of implied contract, and unjust enrichment in the United States District Court for the Southern District of New York. See id. at 7-12; Congressman George Santos Charged With Conspiracy, Wire Fraud, False Statements, Falsification of Records, Aggravated Identity Theft, and Credit Card Fraud, U.S. Att’y’s Off., E.D.N.Y., https://www.justice.gov/usao-edny/pr/congressman-george-santos-charged-conspiracy-wire-fraud-false-statements-0 (Oct. 10, 2023). The Court dismissed the complaint on all counts, determining that Kimmel’s use of Santos’ videos was acceptable under the fair use doctrine. See Santos v. Kimmel, 745 F. Supp. 3d 153, 167, 170 (S.D.N.Y, 2024). The Court held that the use of the videos on the show was transformative enough, as his segment communicates something different from the original video, and was used for the purposes of criticism and commentary. See id. at 167. Santos appealed, and the Second Circuit affirmed the dismissal. Santos v. Kimmel, 154 F.4th 30, 36 (2d Cir. 2025).  

Under the Copyright Act, the fair use doctrine acts as a legal defense for copyright infringement, allowing the use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. 17 U.S.C. § 107 (2026). To determine whether the use of copyrighted work in these settings may be covered under the fair use doctrine, the court considers four factors:  

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 

(2) the nature of the copyrighted work; 

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 

(4) the effect of the use upon the potential market for or value of the copyrighted work. 

17 U.S.C. § 107 (1)-(4).  

While predominantly used to evaluate the first factor of consideration, the transformative nature of a work is central in the fair use analysis and is given significant weight in comparison to the other elements contained in the four factors. See Jeremy S. Goldman, Fair Use Considerations, Practical Guidance (LexisNexis 2025). Its significance is clear in the Santos case, where the court found that the transformative nature of the videos used by “Jimmy Kimmel Live” for purposes of commentary and criticism outweighed the commercial aspects of the use. See 745 F. Supp. 3d at 165; 154 F.4th at 35-6. 

While right of publicity claims were not raised in the Santos case, it nonetheless illustrates how transformative uses of copyrighted works for commentary and criticism preempt such claims, especially in New York, where the statutory right of publicity is narrowly tailored. See Jennifer E. Rothman, The Right of Publicity: Privacy Reimagined for New York?, 36 Cardozo Arts & Ent. L.J. 573, 574 (2018); N.Y. Civ. Rights Law § 50 (McKinney). Note 34 to decisions of N.Y. Civ. Rights Law § 50 states: 

Even though one who is a public figure or is presently newsworthy may be the proper subject of news or informative presentation, privilege to use name, portrait or picture of such person does not extend to commercialization of his personality through a form of treatment distinct from the dissemination of news or information. 

§ 50, Note 34.  

This distinction reinforces the boundary between state statutory rights to publicity and privacy and the fair use doctrine. While the statute protects public figures from unauthorized commercial exploitation of their name, image, and likeness, those protections do not extend to uses that fall within the scope of fair use, as commentary and criticism are used to spread information and express intent. Therefore, even if the use of a public figure’s image is commercial, protections fall short when the use is transformative. This framework supports the ruling in the Santos case and will likely be affirmed in future cases where the secondary use is critical, satirical or communicative, even when commercial in nature. 

Rather than resolving the tension between fair use and publicity rights by balancing those interests, courts are sometimes able to resolve it outright through the application of the Copyright Act’s preemption provision. This provision overrides state law claims such as right to privacy and publicity, when the work may be copyrighted or is in the subject matter of copyright. See 17 U.S.C. § 301(a). This inquiry allows courts to dismiss claims of right to publicity violations without engaging in a fair use analysis if the work in question falls within copyright’s domain. See id. For example, in Jackson v. Roberts (in re Jackson), the Second Circuit affirmed a lower court’s ruling that preempted a well-known rapper “50 Cent” from raising violations of his rights to publicity from the use of his copyrighted sample, vocals, and stage name in another rapper’s, “Rick Ross” mixtape because of a lack of assertions of substantive state interest, distinct from the interests underlying federal copyright law. See Jackson v. Roberts (in re Jackson), 972 F.3d 25, 38-41 (2d Cir. 2020). The Court further recognized the tension between right to publicity and fair use, as the use of secondary works even in a transformative manner may violate a state right to publicity, but is deemed acceptable under fair use. See id. at 40. This reasoning reinforces the power of federal copyright law in expressive contexts and constricts the reach of violation of right to publicity claims when it conflicts with speech protected under the doctrine. 

Though Santos raises no claims of right to publicity violations, it illustrates how courts prioritize transformative use under federal copyright law when evaluating secondary uses of existing works. If Santos pursued a claim alleging a violation to his right to publicity against Kimmel for using his image and persona on his show, the court would likely have found it barred by the Copyright Act’s preemption provision, especially since Santos filed these videos with the Register of Copyrights. Santos Compl. ¶ 38. Any claims Santos may assert under state publicity laws, such as a violation of his autonomy over his likeness or reputation, would closely mirror the same potential harm already protected by fair use, and would not add assertions of substantive state interests distinct those protections. See 972 F.3d at 39. This would result in a similar outcome to Jackson. The court’s focus on transformative use suggests that even if a publicity claim was raised, it would not have stood a chance against the fair use defense within the Copyright Act.  

The Santos case reflects more than a court’s prioritization of fair use and preemption when there are competing federal and state claims. It also gives an indication of a deeper commitment to protecting transformative speech. This is not just a legal commitment but is also a cultural one. Courts are finding remedy for a reality where public figures digitally monetize their identity while simultaneously seeking to control how that identity is perceived and preserved by others. By protecting transformative uses rooted in commentary and critique, the law affirms that freedom of speech and expression cannot be limited by self-monetization even if it may technically infringe upon existing state publicity laws. The protection and prioritization of the First Amendment likely underlie the emphasis of fair use protections, as the courts evidently recognize that speech directed at public figures, even if made to further personal commercial interests, plays a vital role in discourse and expression. While digital platforms continue to integrate business with personal image, courts are ruling in favor of speech as opposed to preserving the right to image control. This reinforces a value rooted in public discourse and the exchange of ideas. When content is posted and shared with others, it is no longer in the exclusive property of its creator. It becomes part of a global conversation which inevitably will contain satire and parody, regardless of the creator’s wishes or intent.