April 23, 2004
In this newsletter: T
HE COURT DISMISSES CLAIM THAT THE OWNERS OF THE COMEDY CENTRAL INFRINGED RIGHTS WHEN THEY AIRED A CLIP OF A SHOW
Sandy Kane, a host of a late-night public access television program, “The Sandy Kane Blew Comedy Show,” in which she sings, dances and makes explicit jokes, filed a lawsuit against Comedy Central for copyright and trademark infringement, and for defamation and violation of her right of publicity.
A clip from Kane's show was shown on a segment of "The Daily Show" called "Public Excess." In the clip, Kane was dancing in a bikini and the title of her show appeared in the background. The clip was shown on a full screen for less than a second and then it was minimized but remained on air for another five seconds. In addition, a portion of the clip was used in a commercial promoting "The Daily Show," along with other clips from segments of "The Daily Show." The promo's announcer proclaimed "The Daily Show: comprehensive, extensive, offensive," and as he pronounced the word "offensive," the clip with Kane dancing in a bikini came on.
Federal District Judge George Daniels granted Comedy Partners' (the owners of Comedy Central) motion for summary judgment and dismissed all of Kane's claims. Judge Daniels ruled that "The Daily Show's" use of the clip from Kane's show protected from copyright infringement because it was a fair use. The Judge found that "by airing [the] clip in a segment called 'Public Excess' and adding some derisive commentary, [Comedy Central] unquestionably used her material for the purpose of criticism." The Judge also stated that "the use of the clip on a commercial for 'The Daily Show, coinciding with the announcer's warning that some material on the show may be 'offensive,' puts the clip into a critical context."
Furthermore, Judge Daniels ruled that viewers would not switch to watching "The Daily Show" just because it aired a clip from Kane’s show. Thus, the use of the clip by "The Daily Show" would not affect the market for Kane's show.
As to Kane's trademark infringement claim, Judge Daniels dismissed it because the use of the clip in "The Daily Show" did not create an impression that someone besides Kane herself was the owner of the trademark of "The Sandy Kane Comedy T.V. Show.
In addition, the Judge rejected Kane's claim that "The Daily Show's" use of her clip violated her right of publicity. He ruled that Kane's name or likeness was not used "primarily for advertising or trade purposes." He also found that the use of the clip fell within the New York Civil Rights Act's "newsworthy" exception for "entertainment and amusement."
Finally, the Judge also dismissed Kane's claim that she was defamed. "The Daily Show" announcer's reference to Kane and her performance as "offensive" was clearly "protected expression of opinion."
Kane v. Comedy Partners, 2003 WL 22383387. U.S. Dist. LEXIS 18513 (S.D.N.Y. 2003)