George Santos v. James C. Kimmel, et al.

New York City, New York, personal injury lawyer represented the Plaintiff who sued on a copyright violation theory.



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 the4

Act is meant to promote.” Hachette Book Grp., Inc. v. Internet Archive, 115 F.4th

163, 179 (2d Cir. 2024) (quotation marks omitted). 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.” 17 U.S.C. § 107.



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.” Andy Warhol

Found. for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26, 37 (2d Cir. 2021) (quotation

marks omitted). Our focus reflects an understanding that "fair use is a flexible

concept, whose application varies depending on the context.” Hachette Book Grp.,

115 F.4th at 179 (quotation marks omitted). It may be "so clearly established by a

complaint as to support dismissal of a copyright infringement claim” at the

pleading stage. TCA Television Corp.

Dismissed.



Affirmed