(JNi.media) A New York court sided with funny man Jimmy Kimmel and found the use of “flying rabbi” Daniel Edward Sondik’s popular YouTube clips was not a violation of intellectual property. Daniel Edward Sondik, a resident of Borough Park, Brooklyn, where he is known as the “flying rabbi,” is a Jewish street preacher. He argued that the skit made him into a “laughingstock,” and appealed the initial decision over the parodic segment that showed the Catholic late night host receiving advice from Sondik in Yiddish. Bob Tolchin, Sondik’s attorney, expressed dismay at the ruling, which he said was “unfortunate,” according to the Daily News. Tolchin described his client as a “sweet, earnest guy,” and added, “What happened on a human level was not a fair thing. You take a guy who is a little eccentric and make a joke out of him. That was deeply hurtful to him. That was a sleazy thing they did.” Then Tolchin stated: “Jimmy Fallon (another late night host) is funnier.”
In a 2010 show, Jimmy Kimmel made parody of LeBron James’ meeting with high profile rabbi Yeshayahu Pinto and then featured himself consulting with the zealous Borough Park personality after saying that he also asks advice of Rabbi Pinto. Although the footage of the gag was taken directly from Sondik’s YouTube videos, Justice David Schmidt said that since the clip was used as part of a comedic routine, the event itself (i.e. LeBron James meeting with Rabbi Pinto) was newsworthy and Sondik looks nothing like Rabbi Pinto and could not be mistaken for him, the appearance of the video could not be deemed as “commercial use.” A New York Law Journal noted that Sondik’s image was “not used or advertising or trade purposes.”
Jimmy Kimmel seemed to be poking fun as much at LeBron James as he was “the flying rabbi,” when he designed the skit around a photo of the athlete seeking business advice from Rabbi Pinto, then showed himself, Kimmel, appearing to converse with Sondik. An argument could be made that once someone puts a large number of posts on YouTube, they have turned themselves into a public figure and may be available to ridicule. Then again, at the risk of being perceived as unkind, perhaps comedians should be cautious and only dish it out to true celebrities, who can take it and may actually benefit from it. However, since Kimmel has won the case, there doesn’t seem to be a disincentive for these kinds of pranks in the future. Of course, even if Kimmel had lost, there is little doubt he could have handled the settlement, given his salary at ABC.
In 2011, the New York Supreme Court dismissed the lawsuit filed by Sondik. He bolstered his case using California as well as New York law, since the clip was created in California, where common law has certain regulations on appropriation of a likeness, and in New York the claim was that Sondik’s image was used for advertisement and trade. The court threw out the claims based on California law, since Sondik is a New York resident, and said Kimmel’s use did not violate New York Civil Rights law because it was within the public interest. Attorney Tolchin said that the fact that the show made millions of dollars was enough reason for Sondik to claim he was being exploited. “If you’re a private citizen,” said Tolchin, “you shouldn’t find yourself being used for skits.”
The clip showed Sondik dressed in Chassidic garb and chanting somewhat incoherently at Jimmy Kimmel, who looked at him with a confused expression on his face. The clip drew more applause than laughter from the audience, although Sondik said the clip was intended to make him look “like a fool.” Judge David Schmidt denied that the comedy sketch was mean spirited: “Even though the 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 the plaintiff’s clip was mean spirited or intended to injure such that its use would be excluded from First Amendment protection.”