Frankfurt Kurnit Klein & Selz

February 1st, 2012

Court Clears Use of YouTube-famous “Flying Rabbi” in Humor Sketch

The use of someone without permission in entertainment can trigger a lawsuit for "commercial appropriation of likeness." And so it was recently when "Jimmy Kimmel Live" created a video mocking a 2010 "business meeting" between basketball star LeBron James and a rabbi.

The Jimmy Kimmel segment began with Kimmel showing an image of James seeking "advice" from  Rabbi Yishayahu Yosef Pinto – an orthodox rabbi known for advising business leaders. Kimmel then announces that he too had met with Rabbi Pinto -- showing the audience a video of himself in a car speaking with an unidentified man dressed in Hasidic garb and loudly chanting. But the Hasidic man in the video was not Pinto. Instead, the show had spliced YouTube footage of New York’s "Flying Rabbi" David Sondik-- a YouTube celebrity.

Sondik sued Jimmy Kimmel and ABC in New York Supreme Court.  Sondik claimed the defendants violated California''s right of publicity statute (Cal. Civ. Code sec. 3344) and “misappropria[ted] his likeness” under California’s common law. He also claimed violations of New York’s right of privacy law (N.Y. Civ. Rts. Law secs. 50 and 51), as well as “unjust enrichment” and breach of contract for the unauthorized use of the YouTube clip.

The defendants asked the court to dismiss the case. They argued that New York law applied, and that under New York law, the use of this YouTube clip was within the “newsworthiness exception” to New York’s right of privacy law. (Under this exception, a defendant’s publication of materials for the purpose of news or addressing a matter of public interest will not violate a person’s right of privacy.)

The court agreed, applied New York law, and dismissed the case: "[T]he 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. . . . [T]he 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." (James does not speak Hebrew.)

The court added that the use of the clip in this “entertainment context” raised “serious First Amendment concerns” that would also require dismissal of the privacy violation claim. The court also noted that plaintiff was not a public figure, and there was no allegation that the use of the YouTube clip “was mean-spirited or intended to injure such that its use would be excluded from First Amendment protection. “ The court also dismissed the "unjust enrichment" and breach of contract claims.

Here, the “newsworthiness exception” insulated the media defendants from a raft of claims.  But even an entertainment use resulted in the expensive exercise of defending a suit.  (A use in advertising or content tied to a brand or product is more likely to generate a claim.)  In sum, whether you represent talent and are considering a licensing request, or you are creating a parody or other material using a person’s image, be sure to consult with your attorney. For more information, contact Rick Kurnit at (212) 826 5531 or rkurnit@fkks.com; Caren Lerner at (212) 705 4833 or clerner@fkks.com; or any other member of the Frankfurt Kurnit Litigation, Advertising, or Entertainment Groups.

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