Jimmy Kimmel is a star of late night TV and his star is still rising. Next up, he’ll be hosting the White House Correspondent’s Dinner in April. So, no one can doubt Kimmel’s high profile in pop culture. But as a comedian he also gets into cheeky territory with stuff that really gives people the needle. And of course, in situations like that, trouble is never too far from the door. All sorts of trouble, that is. But Kimmel is not the sort of guy who’s afraid of trouble and he pushes back hard when it comes. Just like he did recently this past December when he got the court to toss a lawsuit brought against him by somebody he made fun of on his show.
Here’s what happened: In the summer of 2010 basketball star LeBron James visited an orthodox Jewish rabbi named Yishayahu Yosef Pinto for spiritual guidance as he struggled to make a big decision on commercial endorsement deals. On an episode of his show in August 2010, Kimmel made a joke about the James –Pinto visit by showing a video clip of the event alongside a YouTube video of a rabbi named David Sondik, known on YouTube as the “Flying Rabbi.” The Sondik video was meshed with a video of Kimmel himself sitting in a car and talking to Sondik [the Flying Rabbi] who was standing at the window of Kimmel’s car and supposedly counseling Kimmel in incomprehensible sounds and wild manic gestures. Kimmel set up the joke as a way to communicate to his viewers that what LeBron James (who didn’t speak any Hebrew) did on his visit to Rabbi Pinto (who himself didn’t speak any English) made no more sense than what Kimmel himself had done with the Flying Rabbi.
For his part, Rabbi Sondik didn’t find the joke funny, so he sued both Kimmel and ABC seeking damages for defamation, invasion of right of publicity, misappropriation of likeness and for copyright infringement. Sondik claimed that by portraying his voice, picture and likeness as that of Rabbi Pinto he was made to “look foolish” and was cast as a “laughing stock.”
A win for Sondik could have a pretty major impact on how far comedians on late night TV could go in running any video clips as part of a joke on people and events in the society. This could present a classic “slippery slope” situation for comedians: it would mean that every time comedians employ that technique on their show – that is, meshing different images or splicing stuff together- as part of their monologue, they have to worry about whether they have crossed the line into the lawsuit zone where folks like Sondik might be waiting for them. Incidentally, this practice has become so well established as an aspect of late night TV satire that audiences have come to take it for granted on the Leno, Letterman, Conan and other shows.
But Sondik obviously ended up losing and so late night TV satire as we know it will go on. The reason Sondik lost his case is pretty much the same reason that most people would not even launch a lawsuit like that to begin with. And the court in this case made it crystal clear to him. The court basically said that the segment that Sondik was griping about was really just an attempt by Kimmel to make a satire of Lebron James’ meeting with Rabbi Pinto, an event that by itself was either ‘newsworthy or a matter of public interest’. And since Sondik’s lawsuit was also kind of heavy on the right of publicity and misappropriation of likeness stuff, the court shot down that angle by stating that the Kimmel video clip had not been meant for ‘commercial use’. The logic here is that newsworthy stuff and commercial stuff don’t usually run in the same stream.
Long story short, Kimmel ended up making this one a cakewalk. What this confirms yet again is just how very difficult it is to win against a comedian for something done in the way of a joke. For starters, pretty much everyone understands that a comedian is just making a joke and therefore is not dealing with matters of fact in the real world. In this very case, any average late night TV viewer who saw that particular video clip would likely not have thought that Kimmel in fact met with the Flying Rabbi the way that Lebron James met with Rabbi Pinto. In short, comedians do splice stuff together in a funny way just to make people laugh and folks do get the joke on that. Simple as that!
Considering the media buzz and speculations about LeBron James’ next career move in the NBA at the time of the meeting with Pinto, his decision to meet with Pinto was obviously both newsworthy and a matter of public interest. And such events are fair game for comedic gags. The way the court saw it, the meeting between James and Pinto was the main focus of the video clip by Kimmel rather than the Sondik bit in the clip. In this way of looking at it, it is obvious that not even LeBron James himself or Rabbi Pinto, for that matter, could have won a lawsuit against Kimmel for the video clip that Sondik sued about.
And speaking of matters of public interest, one might perhaps wonder whether it is fair that Sondik, who claims to be a private guy, should be dragged into a joke being made by Kimmel about public figures. To be sure, most folks would agree that LeBron James being a public figure should bear the consequences of any newsworthy events that his actions could generate. And for that matter, so should Rabbi Pinto for getting involved with a public figure like James in a newsworthy event. But can it not fairly be said that Sondik was simply dragged into the whole thing and, as he claims in is lawsuit, made a “laughing stock” of?
Maybe so. But in America, parody is so heavily protected by the First Amendment that sometimes even innocent bystanders (and private persons) are swept along by its broad brush. In those situations when it all gets a bit messy, alas, there is no First Amendment protection for anyone against being made into a “laughing stock” or being made to “look foolish.” Yet, the First Amendment has its place and most Americans probably feel grateful that it exists, despite its occasional rough edges.
And one more thing: Sondik claims that Kimmel did not obtain his permission prior to pulling his image from YouTube and making it a part of the video clip used in the joke. Well, one can only say that this claim is pretty idle and doesn’t seem to have a prayer in the law, because the copyright claim here belongs instead to YouTube, and not to Sondik. So, in making this particular claim, Sondik simply came across as just a busy body who is saying something that lies in the mouth of somebody else. Needless to say, this claim was a non-starter. But the law is hardly wrinkle-free: for instance, if you put the proprietors of YouTube in Sondik’s shoes, Kimmel could be looking at some real sticky stuff on his hands, unless he got all the authorizations he needed for his video clip. So, by giving voice to this copyright claim, Sondik may well be trying to wake up some sleeping dogs for a possible legal offensive against Kimmel.
But here’s the final picture: thanks to the protection of parody under the First Amendment, yet another comedian wins a shoving match against folks who don’t like his sense of humor. And surely, the beat goes on for Jimmy Kimmel.
Stay tuned for next month’s installment!