In a December 15, 2011 decision by Justice Schmidt, the court dismissed an action brought against Jimmy Kimmel claiming he invaded the plaintiff’s privacy by using a picture of the plaintiff taken from a YouTube video in a comedic sketch on Jimmy Kimmel Live. The court first addressed a choice of law issue and rejected the plaintiff’s argument that California law applied because the YouTube video was downloaded in California. Applying tort choice of law rules, the court found that New York law, which does not recognize a common law invasion of privacy claim, applied rather than California law, which does recognize such common law claim, because the plaintiff alleged he was domiciled and was injured in New York and, thus, New York had the strongest interest in seeing the rights of its citizens vindicated. The court then found that the claim failed because the Jimmy Kimmel Live segment in which the plaintiff’s image appeared satisfied the broadly construed “newsworthy exception” to New York Civil Rights Law §§ 50 and 51, which are strictly limited to nonconsensual commercial appropriation of a name, portrait or picture of a living person.” Even if the video did not fall into the “newsworthy exception,” the court found First Amendment concerns required dismissal of the claim.
Sondik v Kimmel, Sup Ct Kings County, December 15, 2011, Schmidt, J, Index No. 30176/10