New York Court Issues Dubious Right of Publicity Decision
March 9, 2017
by Jerry Glover
In 2006 Chris Porco was convicted of the murder of his father and the attempted murder of his mother. He was dubbed the Romeo Killer. Six years later the Lifetime cable channel broadcast a film about the event entitled “Romeo Killer”: The Christopher Porco Story.” Porco sued Lifetime claiming a violation of New York’s right of publicity law. Surprisingly, the judge has ruled in Porco’s favor. Porco v. Lifetime entertainment Services, LLC, 2017 WL 703034 (N.Y. S. Ct. App. Div. February 23, 2017). NOTE: The New York Supreme Court, Appellate Division, is not the highest court in New York. The highest court in New York is the Court of Appeals. The New York Supreme Court is like an intermediate appellate court akin to the Illinois Appellate Court.
The film aired in 2012. Porco had earlier attempted to prevent its airing but lost that court battle. See 116 A.D. 3d 1264 (NY Sup. Ct. 2014). In this second round Porco claimed that New York Civil Rights Law Sections 50 and 51 (the “right of publicity” statute). Lifetime moved to dismiss the complaint.
The New York law prohibits the use “for advertising purposes, or for the purposes of trade” the name of any living person without their consent. But New York courts have consistently held that this law, in order to comply with the First Amendment guarantees of free speech and press, does not apply to reports of newsworthy events or matters of public interest. Motion pictures and television programs are included in this protection.
But brief four-page opinion, the Porco court noted that New York courts have noted that liability for violating the right of publicity may be found if the material in question is materially and ”substantially fictitious” or if the material is a “knowing fictionalization” which amounts to an all-pervasive use of imaginary incidents. This type of work that is so filled with fiction, dramatization or embellishment does not fulfill the purpose of the newsworthiness exception. The court used as an example a film revolving around a so-called true occurrence—the rescue of passengers from a shipwreck—would not invoke the newsworthiness defense in the event that the entire film was mainly a product of the imagination.
In this case the plaintiff had alleged in his complaint that Lifetime knowingly produced a substantially fictitious biography. The plaintiff noted that a producer of the film had sent a letter to the plaintiff’s mother before the film’s broadcast indicating that the producer was making a documentary to accompany the film that would provide the mother with a platform on which the family could state their position “in a non-fictional program” after the broadcast of the film. The court used this letter to infer that the producer considered the film to be fictitious. The court concluded that the plaintiff had pleaded enough facts (which are assumed to be true on a motion to dismiss) to avoid dismissal.
This decision is troubling for several reasons. First, the court referred to but did not even attempt to reconcile the statutory language that right of publicity violations occur only when a person’s name is used without consent for advertising purposes or for purposes of trade. A film is generally not considered “trade” nor is it a violation to use the name of the subject to publicize a film based on true incidents even if that film is called a “fictionalization.”
Second, the court’s reliance on the film producer’s letter to the plaintiff’s mother is a slim reed to conclude that the film is materially fictional. All films based on real incidents have some fictionalization to them. Incidents may be omitted, dialogue may be invented, two or more real life people may be combined into one, time lines may be altered. But these changes have always been considered acceptable in order to speed up the pace of a film or the dramatic impact. See, for example, Server v. Chartier, 813 F.3d 891 (9th Cir. 2016) (“The Hurt Locker” did not violate the plaintiff’s right of publicity for simply adding certain fictional elements). But it’s not clear what the producer’s letter meant by the simple reference to the as yet produced documentary as a “non-fictional program.” That is simply the definition of most documentaries; it does not necessarily say anything about the amount of fictionalization that may have been inserted into the film about the Porco incident.
Finally, the court pointed at nothing in the plaintiff’s complaint that noted major fictionalizations or major incidents portrayed in the film that did not occur. How can the court conclude, then that the film was a fictional product and not available for statute’s newsworthy exception?
We assume this decision will be appealed and we will keep an eye out for the next court decision in this matter.