NEW YORK, - A New York court has dismissed a lawsuit by a Brooklyn man dubbed the "Flying Rabbi" against ABC Inc and Jimmy Kimmel Live over the late-night talk show's use of the man's image in a parody sketch involving basketball star LeBron James.
At a taping for his show on August 10, 2010, Kimmel told the studio audience that James had met with Rabbi Yishayahu Yosef Pinto to seek "business advice" -- a meeting which had in fact occurred that month, according to the website TMZ.
Kimmel then told the audience that he too had met with Pinto, and showed a video segment of himself in a car talking with an individual dressed in Jewish religious clothing and speaking in a foreign language.
In fact, Kimmel never spoke with Pinto: The footage of the conversation was assembled using a video of Kimmel in his car spliced together with footage of the plaintiff, David Sondik, taken from a series of YouTube videos showing Sondik greeting people on the street and talking animatedly. The videos refer to Sondik as the "flying rabbi."
Sondik, described as a "neighborhood character" by his attorney, Robert Tolchin, objected to the show's use of his image. He filed a suit in December 2010 in Brooklyn state court accusing the show of falsely presenting him as Pinto and of failing to seek his permission before turning him into the butt of the joke.
Because the Jimmy Kimmel show is produced and filmed in California, Sondik sued under California law -- which recognizes a common-law right to sue based on an invasion of a person's right to privacy.
But in a ruling Dec. 14, Justice David Schmidt disagreed and dismissed the suit, holding that it must be brought under New York law because Sondik lives in New York and the alleged injury took place here. New York law does not recognize common-law actions based on violations of privacy or publicity rights, Schmidt noted.
'MADE TO LOOK LIKE A FOOL'
In his ruling Schmidt also said that New York law allows unauthorized use of an individual's image for "newsworthy events or matters of public interest."
"[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," Schmidt wrote.
The judge also dismissed Sondik's claims of defamation against Kimmel.
"Even 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," Schmidt wrote.
Tolchin said his client intended to appeal the ruling that Kimmel's use was protected by the "newsworthiness" of the James story.
"A story about LeBron James and Rabbi Pinto is perfectly valid, you can put that on the news," Tolchin told Reuters in an interview. "But my client is a private citizen. Jimmy Kimmel took my client's image and said it was Rabbi Pinto, which he isn't. That's a lie."
"My client was the butt of the joke and made to look like a fool in front of millions of people," Tolchin said.
Calls to an attorney and a network representative for Jimmy Kimmel Live were not immediately returned Wednesday.
The case is Sondik v. Kimmel et al, in the Supreme Court of the State of New York, Kings County, index no. 30176/10.