Comedy, Copyright & Coercion: Jimmy Kimmel As A Case Study In The First Amendment’s Intellectual Property (IP) Architecture

Events surrounding Jimmy Kimmel Live! illuminate two complementary ways U.S. law mediates the tension between intellectual property (IP) and free speech. First, copyright’s built-in First Amendment accommodations – most centrally fair use and the idea–expression boundary – leave breathing room for commentary, criticism, and parody. That accommodation is on full display in Santos v. Kimmel (2025), where the Second Circuit affirmed dismissal of George Santos’ copyright claims because Kimmel’s on-air use of Santos’ Cameo videos was fair use. Second, when state actors pressure private intermediaries to suppress speech, First Amendment “jawboning” doctrine (separate from IP) polices coercion. Read together, these doctrines preserve space for public-facing satire – even amid political heat. If you have concerns about free speech and copyright law, or other questions about copyrights or other types of intellectual property, our Jersey City, NJ copyright lawyer is available to talk.

Setting The Stage: Copyright, Comedy, And The First Amendment

Copyright and trademark grant exclusive rights that can burden speech. Since Baker v. Selden (1880), the Supreme Court has drawn a line between unprotectable ideas/systems and protectable expression; and since Congress codified fair use in 17 U.S.C. § 107, courts have treated “criticism, comment and news reporting” as paradigmatic non-infringing uses. In Eldred v. Ashcroft and Golan v. Holder, the Court characterized these doctrines as copyright’s “built-in First Amendment accommodations.”

Kimmel’s recent litigation offers a concrete case study. In Santos v. Kimmel (2025), the Second Circuit held that Kimmel’s reuse of Santos’s Cameo videos in a recurring “Will Santos Say It?” segment was fair use – commentary and criticism, not market substitution.

The Structural Accommodation In Copyright

1. Copyright’s safety valves. The idea–expression dichotomy and fair use reduce First Amendment friction: copyright protects expression, not ideas or facts (Baker), and fair use preserves space for commentary and critique. Eldred and Golan rejected broad First Amendment attacks in part because those internal limits already cabin speech burdens.
2. Parody after Campbell and Warhol. In Campbell v. Acuff-Rose 510 U.S. 569 (1994), the Court explained the classical definition of parody as a work that “at least in part” targets the original, using recognizable elements to comment on or criticize it; a parody may take enough to “conjure up” the original. The inquiry is factor-based and can favor parodies even when they are commercial. In 2023, Andy Warhol Foundation v. Goldsmith 143 S. Ct. 1258 (2023) refined the first-factor analysis by directing courts to assess the specific use and whether it plays the same market role as the original or its licensed derivatives. Parodies that comment on the original and do not act as market substitutes still fit comfortably within Campbell.

 1 In Baker v. Selden (1880), the U.S. Supreme Court ruled that copyright protects the expression of an idea but not the idea or method itself, establishing that while Selden could copyright his book describing a bookkeeping system, he could not claim exclusive rights to the system or the blank forms illustrating it, as the forms were inseparable from the uncopyrightable underlying method. The case distinguished between copyright, for literary and artistic works, and patents, for inventions and systems, clarifying that the public has a right to use any system or method described in a copyrighted work once it has been published.

targets the original, using recognizable elements to comment on or criticize it; a parody may take enough to “conjure up” the original. The inquiry is factor-based and can favor parodies even when they are commercial. In 2023, Andy Warhol Foundation v. Goldsmith 143 S. Ct. 1258 (2023) refined the first-factor analysis by directing courts to assess the specific use and whether it plays the same market role as the original or its licensed derivatives. Parodies that comment on the original and do not act as market substitutes still fit comfortably within Campbell.

Parody & Commentary As Fair Use (Deep Dive)

A. The classical definition of parody in copyright.

The “four factors of parody” as listed in 17 U.S. Code §107  are actually a reference to

the four factors of fair use. These factors determine if a work is a legitimate parody.

These factors are: (1) Purpose and character of the use (Targeting); (2) Nature of the copyrighted work (Necessity); (3) Amount and substantiality of the portion used; and 4) Effect on the potential market of the copyrighted work.

1. Purpose and character of the use – Targeting. A parody comments on the original work; satire (using a work to comment on something else) receives less leeway. (Campbell). This factor considers if the work is transformative, meaning it adds new expression, meaning, or message to the original work. As indicated above, parody is often considered transformative because it comments on or criticizes the original work. The questions to be answered are: Is the use commercial or for nonprofit educational purposes? Is it transformative?
2. Nature of the copyrighted work – Necessity (“conjure up”). A parody may copy the “heart” of a work if reasonably necessary to call it to mind, but should take no more than needed. (Ninth Circuit’s Fisher v. Dees; Second Circuit’s Berlin v. E.C. Publications (MAD Magazine)). There is balancing act in determining if the original work is highly factual vs. highly creative. If highly factual, using a portion of the original work might be more likely to be considered fair use than using a highly creative work. A parody may need to use enough of the original to “conjure up” the original work for its critical purpose. This factor also involves determining if the work is published or unpublished?
3. Amount and substantiality of the portion used. There is an interplay between the second factor and this factor, namely, this factor “weighs the amount of the copyrighted work used relative to the entire work.”
4. Market role. The fourth factor asks about substitution, not whether criticism hurts the original; creators rarely license lampoons of their own works, so the absence of a “permission market” for criticism weighs toward fair use (Campbell). Stated differently, this factor analyzes “the effect of the use upon the potential market for or value of the copyrighted work.”
5. Illustrative outcomes. Courts have sustained parodies across media where the work clearly comments on the original – e.g., Leibovitz v. Paramount (photo parody used in film advertising) and Mattel v. Walking Mountain (Barbie photography) – while treating some “parody-styled” works as satire (e.g., Dr. Seuss v. Penguin Books) when they used Seuss’s style to comment on the O.J. Simpson trial rather than on Seuss.

B. Why parodies of public figures are protected speech: Hustler v. Falwell 485 U.S. 46 (1988).

Hustler does not arise from copyright, but it powerfully reinforces First Amendment protection for parodies of public figures. The Court held that a public figure cannot use intentional-infliction-of-emotional-distress (IIED) to punish an outrageous parody absent a false statement of fact made with actual malice. Because Hustler’s liquor-ad parody could not reasonably be understood as stating actual facts about Jerry Falwell, the claim failed. This tort-law shield guards the genre of sharp political parody; copyright’s fair-use doctrine supplies the tool for limited copying to make that parody. Together, Hustler + Campbell create robust space for satiric commentary about public figures.

Case Study: Santos V. Kimmel (2025) – Parody And Commentary In Practice

1. Facts and posture. Using pseudonymous accounts, Kimmel requested personalized Santos videos on Cameo and then aired portions in “Will Santos Say It?” to satirize Santos’s willingness to “say absurd things for money.” The district court dismissed the complaint; the Second Circuit affirmed.
2. The Second Circuit’s analysis (selected points).

• Purpose & character. Transformative commentary was apparent from the complaint itself; the relevant lens is what a reasonable observer would understand the use to be (commentary/sarcasm), not the parties’ subjective purposes.
• Amount & necessity. The program used only what was necessary to make the joke land.
• Market effect. The court emphasized that fair-use analysis asks whether the secondary use usurps the market by offering a competing substitute, not whether criticism or parody “damages” a work’s value. Echoing Campbell, it noted the “unlikelihood that creators of imaginative works will license critical reviews or lampoons of their own productions.”

3. Takeaway. Santos is a model of how the post-Warhol framework protects genuine commentary on the subject itself (here, Santos) that does not function as a substitute for the original.

Trademark, Comedy, And The Limits Of “Rogers” (Briefly)

Trademark lacks a statutory fair-use provision tailored to commentary, but courts recognize expressive and nominative uses consistent with the First Amendment. The Supreme Court’s Jack Daniel’s Properties, Inc. v. VIP Products LLC, 599 U.S. _(2023) narrowed reliance on the Rogers test where a defendant uses another’s mark as a source identifier; ordinary confusion/dilution rules then apply. And in Vidal v. Elster, the Court upheld the Lanham Act’s “names clause” against a First Amendment challenge, while earlier decisions (Matal v. Tam; Iancu v. Brunetti) invalidated other viewpoint-discriminatory registration bars. For late-night comedy: references to brands tied to commentary are usually safe; using a mark as your own source identifier is riskier after Jack Daniel’s.

Online Speech Procedure: DMCA § 512

Because modern parody often travels on platforms, § 512’s notice-and-takedown regime matters. In Lenz v. Universal  Music Corp., No. 13-16106 (9th Cir. 2015) the Ninth Circuit required rightsholders to consider fair use in good faith before sending a takedown; fair use is “authorized by law,” not merely an affirmative defense. The U.S. Copyright Office’s 2020 § 512 Study catalogs strengths and strain points of the regime, including concerns about over-removal of lawful speech and the importance of counter-notice.

Government “Jawboning,” Private Editors, And Late-Night Speech (Context)

First Amendment law distinguishes private editorial discretion from government coercion. Classic cases (Bantam Books, Backpage v. Dart) and the Court’s recent unanimous decision in NRA v. Vullo, 602 US 175 (2024) condemn state efforts to “coerce” private entities into punishing disfavored speakers. (By contrast, Murthy v. Missouri (2024) emphasized standing and the persuasion–coercion line.) These principles frame contemporary debates when regulators criticize or urge “remedies” aimed at broadcast content. The legality turns on whether or not officials’ statements, “viewed in context,” can reasonably be understood as threats of adverse government action that cause suppression.

Practical Guidance For Parody In News/Comedy Workflows.

1. Design for transformation. Make the targeting of the original (or public figure) explicit in scripts/outlines. That record helps courts see commentary rather than mere re-use. (Campbell; Santos).
2. Use only what you need. Copy only what is necessary to “conjure up” the original; keep the rest new. (Fisher; Berlin).
3. Explain non-substitution. Document why your use cannot substitute for the original or a protectable derivative market. (Campbell; Santos).
4. Public-figure buffer. For public-figure targets, Hustler limits tort end-runs (e.g., IIED), absent false statements of fact made with actual malice.
5. Platform hygiene. If you send takedowns, build fair-use review into the workflow (Lenz); if you receive them, counter-notice with factor-by-factor explanations tied to commentary or parody.

Key Takeaways: Lessons From Kimmel And Parody Law

Kimmel’s case underscores how copyright’s internal safeguards and the First Amendment’s broader protections for parody work together. Campbell and Hustler mark the doctrinal heart: parodies that speak about the original (or its author) occupy the core of fair use, and when the target is a public figure, tort law cannot be used to silence caustic parody absent false factual assertions made with actual malice. Santos v. Kimmel shows these principles at work in contemporary satire.

Our founder and managing partner, Attorney Emmanuel Coffy, has over 20 years of experience as a registered patent attorney and is a former patent examiner. Our team includes ex-patent examiners, engineers, inventors, and business attorneys. If you need help with the legal side of intellectual property, reach out to COFFYLAW today.

Selected Authorities (primary sources & key summaries):

• Classical parody & fair use: Campbell v. Acuff-Rose, 510 U.S. 569 (1994) (parody may take what’s needed to “conjure up” the original; commerciality not dispositive).
• Parodies of public figures (tort shield): Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (IIED cannot circumvent Sullivan; no liability absent false facts with actual malice).
• Kimmel use case: Santos v. Kimmel, No. 24-2196 (2d Cir. Sept. 15, 2025) (affirming dismissal; transformative commentary; no market substitution).
• Illustrative parody cases: Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986); Berlin v. E.C. Publications, 329 F.2d 541 (2d Cir. 1964); Leibovitz v. Paramount, 137 F.3d 109 (2d Cir. 1998); Dr. Seuss v. Penguin Books, 109 F.3d 1394 (9th Cir. 1997) (satire, not parody); Mattel v. Walking Mountain, 353 F.3d 792 (9th Cir. 2003).
• Modern calibration: Andy Warhol Foundation v. Goldsmith, 598 U.S. 508 (2023) (focus on the specific use and market role).
• Trademark & speech: Jack Daniel’s v. VIP Products, 599 U.S. 140 (2023); Vidal v. Elster, 602 U.S. ___ (2024).
• DMCA process: Lenz v. Universal, 801 F.3d 1126 (9th Cir. 2015); U.S. Copyright Office, Section 512 Study (2020).