Win for Free Speech and Docudramas in New YorkBy Jennifer E. Rothman
June 28, 2021
Last week a New York appellate court granted the defendant’s summary judgment motion in Porco v. Lifetime Entertainment Services, the long-running dispute over Lifetime’s ripped-from-the-headlines docudrama Romeo Killer: The Chris Porco Story, which first aired in 2013. This decision reverses the trial’s court’s alarming rejection of the defendant's summary judgment motion on the basis that some aspects of the docudrama were fictionalized.
The appellate court properly recognized that the docudrama genre even though rooted in real events routinely fictionalizes various elements, and that such fictionalization must be protected as a matter of free speech. In so deciding, the court provided greater clarity about the scope and limits of New York’s right of publicity law (enacted as its “right of privacy”) pursuant to Civil Rights Law §§ 50 & 51and harmonized the state's law with that of other entertainment hubs like California. See, e.g., De Havilland v. FX Networks (Cal. App. 2018).
The plaintiffs in the case are Christopher (“Chris”) Porco and his mother, Joan Porco. Chris was convicted of murdering his father and attempting to kill his mother. The Porcos sued Lifetime, claiming that the docudrama violated their statutory right of privacy under New York law by using “their names, likenesses and personalities in the film and related promotional material” for a commercial use without permission. Op. at 2.
Lifetime asserted a number of defenses, including the newsworthiness defense considered here by the appellate court. The appellate division avoided evaluating an independent First Amendment defense and instead rested its grant of summary judgment entirely on New York law and the exception to liability for newsworthy uses. This exception is sometimes understood as taking a use out of the scope of the statute by demonstrating that the use is not for “purposes of trade,” but perhaps more frequently is considered an independent defense (most states recognize a newsworthiness defense to their privacy and publicity laws).
A number of important insights flow from this new appellate decision out of New York:
Expressive Works Can be Uses for Purposes of Trade
The court once again supported the view of many New York courts that under some circumstances use of a person’s name, likeness, or voice in expressive works can constitute a use for purposes of trade and subject creators to liability under Civil Rights Law §§ 50 & 51. By doing so, the appellate division rejected the defendant’s argument that expressive works like films, plays, and books are categorically outside the statute’s reach. This conclusion is no surprise to me based on my reading of New York law and the recent decision in Lohan v. Take-Two Interactive Software, but dashed the hopes of many others, particularly those in the entertainment industry who were hoping for a clear bright-line rule that would exempt works like docudramas from liability under New York law.
To Avoid a “Fatal Conflict” with Free Speech and the First Amendment the Newsworthiness Defense is Broadly Defined
The appellate division emphatically supported a broad newsworthiness exception to liability. When a defendant "reports" "newsworthy events or matters of public interest,” there can be no liability. The court emphasized that this exception applies broadly without regard to whether uses are made for profit or entertainment value, and importantly included contexts in which the work at issue is fictionalized.
The court described two main exceptions to the newsworthiness defense. First, if the use of a person’s identity is “merely incidental” and lacks “a reasonable connection between the use of an individual’s name or likeness and a matter of public interest.” Second, and of the most relevance here, if “the purported aim of the work is to provide biographical information ‘of obvious public interest, but the content is substantially fictionalized,’ and therefore does not serve that interest.” Op. at 4 (emphasis added).
Fictionalizations and Dramatizations Can Still be Newsworthy
This second basis to reject a newsworthiness defense—substantial fictionalization—is the one at issue here and served to justify the trial court’s rejection of the summary judgment motion on the basis that much of the docudrama was fictionalized. The appellate division agreed with the basic rule providing such an exception to newsworthiness, but strongly disagreed with the trial court’s interpretation of that rule and any purported need for additional fact finding on the issue.
The appellate court provided greater and more appropriate latitude for the fictionalization of dialogue, scenarios, and characters in docudramas and creative works more generally than the trial court. The appellate division concluded that while a docudrama claiming to be based on real events and real people cannot be wholly “invented,” it could use common, fictionalized dramatic devices like flashbacks, staged interviews, composite characters, and imagined dialogue so long as the underlying event is newsworthy (as it was here) and the work provides a “broadly accurate description” of those events (here the crime, investigation, and trial), which it did. Op. at 7.
The court highlighted that the film included a disclaimer that noted that although it was “based on a true story,” various liberties had been taken with the underlying material, including that “some names have been changed, some characters are composites and certain of the characters and events have been fictionalized.” Op. at 7. As such, the defendant had not tried to mislead the public about the veracity of the work and the depiction of the events was not “so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception.” Op. at 7. The court suggested that a reasonableness standard is an appropriate way to evaluate such determinations.
There is No Independent False Light Tort in New York
The appellate division reiterated that there is no common law false light tort in New York. Accordingly, simply disseminating some falsehoods about the Porcos that they found offensive (even if highly offensive) could not serve as a basis of liability unless the use of their identities was independently shown to violation Sections 50 & 51.
Spahn and Binns Still Good Law
Before defense attorneys for media companies get too confident though, it is important to emphasize that the appellate division reiterated the legitimacy of two older cases that allowed for liability under New York’s publicity laws in the context of expressive works. These cases, Spahn, involving a biography of a famous baseball player, and Binns, involving a movie about a heroic rescue at sea, are often thought of as anachronistic, but yet again a New York court says they are still good law today. With that said, the court describes them as uniquely egregious. The biography about Spahn is described as “knowingly” “riddled with material and substantial falsification,” with “no informational value,” and no purpose other than the “commercial exploitation” of the ballplayer’s “personality.” Op. at 6. The movie about Binns is described as depicting him in a way that had “no connection whatever with the incident” and without any educational or instructive value other than to “amus[e] the public and boost ticket sales.” Op. at 6.
This sounds to me like a standard that will let most in-house counsel sleep well at night, while still providing a warning to storytellers to not shamelessly exploit individual personalities unmoored from some informative content and to make some effort to fact check and not knowingly disseminate material falsehoods. (And, of course, to include a disclaimer.)
This case may still go to the New York Court of Appeals, but I expect (and hope) that that court would similarly interpret the free speech issues at stake here and dismiss the plaintiffs’ complaint. The newsworthiness defense applies here, and if for some reason New York’s high court were to decide otherwise under New York law, the First Amendment would still provide Lifetime with a defense.
Related Order on Discovery, Porco v. Lifetime, No. 529946 (NY App. Div. June 24, 2021)