A New York man was unsuccessful in his lawsuit accusing Jimmy Kimmel of misappropriating his image during a skit on the late night TV show, Jimmy Kimmel Live!
In August 2010, Kimmel related the news that LeBron James reportedly visited a rabbi for business advice. As part of the joke, Kimmel said he also visited a rabbi for business advice and played a YouTube video clip of Daniel Edward Sondik. Dubbed the "Flying Rabbi," the video showed Sondik gesturing dramatically while speaking Yiddish on the streets of New York.
Sondik filed suit in New York state court, alleging that Kimmel violated his privacy in contravention of a state law that allows private citizens to sue when their name or image is used for commercial purposes without permission. He also argued that the nonconsensual use of the video clip used for the segment misappropriated his image in violation of California state law. Kimmel made him "look foolish," Sondik told the court, and presented "him as a laughingstock."
A trial court judge granted Kimmel's motion to dismiss, in part because it found New York law governed the dispute and California law did not apply. The judge also said an exception to the New York law applied because Kimmel's skit was focused on a newsworthy event, James' meeting with the rabbi.
Sondik appealed but a panel of the state's appellate court affirmed using an "interest analysis," under which the law of the jurisdiction having the greatest interest in resolving the particular issue is given controlling effect.
"[T]he law of New York, where the alleged injury or damage occurred, applies," the court wrote. "Although the alleged tortious conduct, the editing of the video clip, occurred in California, the plaintiff's alleged injury occurred in New York, where he is domiciled and resides. Moreover, New York is the state with the greater interest in protecting the plaintiff, its citizen and resident."
Because New York law governed, the trial court properly dismissed the counts under California law, the appellate panel said.
Sondik's New York claims for invasion of privacy met a similar fate. "[T]he video footage in which the plaintiff's voice, picture, and likeness appeared was not used for advertising or trade purposes," the court said. "Moreover, the video footage falls within the public interest exception."
The panel affirmed dismissal of Sondik's suit, with costs. Sondik's attorney said his client is considering an appeal. "What happened here on a human level was not a fair thing—you take a guy who's a little eccentric and make a joke out of him," the attorney told the New York Daily News. "This was deeply hurtful to him."
To read the opinion in Sondik v. Kimmel, click here.
Why it matters: The appellate court opinion provides minimal analysis of the New York law at issue, other than to state Kimmel's use of the YouTube clip doesn't constitute advertising or trade purposes. The panel also didn't elaborate on the public interest exception to the law other than to affirm the trial court judge's finding that LeBron James' meeting with a rabbi constituted a newsworthy event.