New York Trial Court Allows Right of Publicity Case to Proceed Against TV Docudrama
Once again a New York court has allowed Christopher Porco (hereinafter “Chris”) and his mother, Joan Porco, to proceed with their right of publicity claims brought under New York Civil Rights Law § 51 arising out of a Lifetime docudrama. Chris and Joan object to the use of their names and identitites in the film titled Romeo Killer: The Chris Porco Story, that first aired in March of 2013. The film was based on real events that involved the murder of Chris’s father and attempted murder of his mother. Chris was convicted of these crimes and is currently in prison.
On May 15th, the trial court rejected both parties summary judgment motions. The summary judgment motions centered on the following issues: (1) whether the Lifetime film could be considered a use of their names or likenesses “for purposes of trade” as required by the statute; (2) whether the uses were protected by a newsworthiness defense; and (3) whether an independent First Amendment defense barred the claim.
The court concluded that to the extent that the film is a “material and substantial fictionalization” of real events―something it deemed a fact question appropriate for a jury―it is a use "for purposes of trade" under the New York statute and cannot benefit from a newsworthiness defense. The court did not consider an independent First Amendment defense, seemingly concluding that such an inquiry was subsumed into the newsworthiness inquiry.
Even though more than 100 years has passed since the adoption of New York’s right of privacy statute (first passed in 1903), there are still questions as to what constitutes a "use for purposes of trade" under the statute. A recent decision by the New York Court of Appeals in Lohan v. Take-Two Interactive Software suggests that motion pictures and video games may indeed fall within the statute and be considered use for trade purposes—though I note that the Court declined to make a holding on that question and advocates have taken different views on what that dicta in the case meant.
The conclusion that Sections 50 and 51 include such expressive works is in part supported by a line of New York cases that have allowed right of publicity claims in the context of uses in books, newspapers, and movies when the depiction of the plaintiff is fictionalized or contains falsehoods. Several New York courts have concluded that such falsity demonstrates both that the use is for purposes of trade and also that the use is not newsworthy. Although these two questions are distinct, New York courts have sometimes collapsed these inquiries.
From my perspective, however, the key question in this case is not whether uses in motion pictures or newspapers should constitute a use for purposes of trade―arguments could be made in both directions on that score. Instead, the primary issue should be that the First Amendment stands as a bar to such claims in this context unless the plaintiffs can meet the actual malice standard of New York Times v. Sullivan, and establish that the film defames them or paints them in a false light. The recent 2018 decision by the California Court of Appeal in De Havilland v. FX Networks provides a clear-eyed counterpoint to this decision and serves as a guidepost for how to address claims by plaintiffs that their rights of publicity have been violated in the context of fictionalized biographical pictures.
The decision is likely to be appealed. Hopefully, the appellate court will give greater consideration to the threat to free speech posed by allowing right of publicity claims to proceed in the context of docudramas. The mere fact that some fictionalization occurs does not strip films of the First Amendment’s protections.
THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World
This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.