This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.
A New York court has dismissed "Flying Rabbi" David Sondik's lawsuit against late night host Jimmy Kimmel and ABC. Sondik's complaint claimed that Kimmel and ABC had used his image without consent in a Jimmy Kimmel Live! segment that mocked a 2010 "business meeting" between basketball star LeBron James and Rabbi Pinto.
The segment began with Kimmel showing an image of LeBron seeking "advice" from Rabbi Pinto regarding his 2010 free agency decision. Kimmel then announced that he too had met with Rabbi Pinto, and showed the audience a video of himself in a car speaking with an unidentified man dressed in Hasidic garb, who was loudly chanting. However, the Hasidic man in the video was not Pinto. Instead, Kimmel had spliced YouTube footage of New York's "Flying Rabbi" David Sondik– a minor YouTube celebrity.
On December 9, 2010, Sondik sued Kimmel, Jimmy Kimmel Live! and ABC in New York state court, claiming that the defendants had falsely portrayed him as Rabbi Pinto and had presented him as a "laughingstock." Sondik alleged causes of action for (1) violation of California's right of publicity statute, Civil Code Section 3344; (2) "misappropriation of likeness" under California's common law; (3) violation of New York's right of privacy law, Civil Rights Law Sections 50 and 51; and (4) unjust enrichment. Sondik also asserted a breach of contract claim for Kimmel's allegedly unauthorized use of the YouTube clip.
On December 14, 2011, the court granted the defendants' motion to dismiss the complaint for failure to state a cause of action. At the outset, the court held that New York law, rather than California law, applied to Sondik's privacy-related claims, because Sondik lives in New York and was allegedly injured there. (Order at 4-5.) The fact that the defendants downloaded the YouTube video of Sondik and created the television segment in California did not overcome New York's interest in protecting its residents. (Id. at 5.)
This ruling was a huge blow to Sondik, because New York law, unlike California law, does not allow for a common-law action based on an invasion of a person's right to privacy. Instead, New York law limits recovery to the statutory relief provided under Civil Rights Law Sections 50 and 51. Under these sections, recovery is "strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person." (Id. at 6 (emphasis added).) These sections do not apply to reports of newsworthy events or matters of public interest. This broad newsworthy exception extends to comedic or satiric performances, "even if the performance is not related to a legitimate news broadcast or event." (Id.)
Analyzing Sondik's claims under N.Y. Civil Rights Law Sections 50 and 51, the court determined that the defendants' use of the YouTube clip fell within the newsworthiness exception. The court noted that a "review of the DVD of the segment supplied by defendants demonstrates that the clip of plaintiff at issue was used as a part of a comedic (or at least an attempted comedic) or satiric parody of Lebron James' meeting with Rabbi Pinto, itself undoubtedly an event that was newsworthy or of public interest." (Id. at 7.) The court further reasoned, "It is apparent that the piece primarily makes fun of the idea that LeBron James was seeking business advice from a spiritual leader with whom he could not actually converse," as James does not speak Hebrew. (Id.)
The court further stated that "[e]ven if the newsworthy exception did not apply here, the use of the clip in this entertainment context raises serious First Amendment concerns that would likewise require dismissal of the section 50 and 51 claims." (Id. at 10.) The court reasoned, "[e]ven though plaintiff is not a public figure, there is no allegation in the complaint or inference that can be drawn from the DVD suggesting that the use of plaintiff's clip was mean-spirited or intended to injure such that its use would be excluded from First Amendment protection." (Id.)
The court noted that that even if the case were governed by California law, Sondik's common-law misappropriation and Section 3344 right to publicity claims would still fail, because (1) there was no intrusion into Sondik's private affairs because the YouTube clip was filmed on a public street; (2) there was no public disclosure of private facts since the YouTube clip had already been made public; and (3) there was no suggestion that the commercial value of the Kimmel segment was based on Sondik's identity. (Id. at 11-12.)
Finally, the Court dismissed Sondik's breach of contract claim, because he had failed to allege that he posted the YouTube clip or was a party to, or a third-party beneficiary of, the YouTube terms of use.
Sondik's attorney promises to appeal this decision.
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