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Judge tosses lawsuit over Jimmy Kimmel sketch

NEW YORK (Reuters) - A New York court has dismissed a lawsuit by a man dubbed the "Flying Rabbi" against TV network ABC and late-night talk show "Jimmy Kimmel Live" over its use of the man's image in a parody involving basketball star LeBron James.

At a taping for the ABC show on August 10, 2010, host Kimmel told audiences 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 he too met with Pinto, and he showed a video of himself in a car talking with an individual dressed in Jewish religious clothing and speaking in a different 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, Brooklyn, New York's 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 sued in December 2010 accusing the Kimmel show of falsely presenting him as Pinto and failing to seek his permission before turning him into the butt of the joke.

Because "Jimmy Kimmel Live" 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 December 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 in the state. New York law does not recognize common-law actions based on violations of privacy or publicity rights, Schmidt noted.

In his ruling Schmidt also said New York law allows unauthorized use of an individual's image for "newsworthy events or matters of public interest."

" 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.

(Reporting by Jessica Dye; Editing by Bob Tourtellotte)

Follow us on Twitter @ReutersLegal

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