On 23 February 2017, the New York Supreme Court Appellate Division, decided that Christopher Porco, the man convicted in 2006 of killing his father and attempting to kill his mother with an axe while they slept in their home, has a claim under New York’s Civil Rights Law § 50 and 51 (Porco v Lifetime Entertainment Servs., LLC 2017 NY Slip Op 01421).
Background
In 2013, Lifetime Entertainment broadcast the film “Romeo Killer: The Christopher Porco Story”, based on Christopher Porco.
Upon learning that Lifetime Entertainment planned to broadcast the movie, Porco sued under New York’s Civil Rights Law § 50 and 51 (“50/51”), the only of the four traditional Prosser torts recognized by the state of New York. In 2015, the New York Supreme Court granted Lifetime Entertainment’s motion to dismiss the complaint for failure to state a cause of action. Porco, acting pro se, appealed.
The Statute
The limited statutory right of privacy in §50 and §51 makes it a misdemeanour for a firm or corporation to use the name, portrait or picture of a person for the purpose of advertising or trade without their written consent. A successful plaintiff is entitled to both an injunction and damages.
The statute does not apply to “newsworthy events or matters of public interest”, which are protected by the First Amendment. (Messenger ex rel. Messenger v. Gruner + Jahr Printing & Pub., 94 N.Y.2d 436 (2000)).
Appellate Division Decision
On Thursday 23, February 2017, the Appellate Division held the lower court had erred in granting Lifetime Entertainment’s motion to dismiss for failure to state a cause of action.
The Appellate Division considered the “newsworthiness” exception alongside Court of Appeals precedent on the application of 50/51 to biographies.
Where a work is “so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception”, the exception will not apply (Messenger v. Gruner, 94 N.Y.2d 436 at 446). In such cases, the biography is nothing more than an “attempt to trade on the persona of the plaintiff” (Id.) and the fact that the work revolves around a “true occurrence” is not enough to bring it within the exception (Binns v. Vitagraph Co. of Am., 210 N.Y. 51, 58, 103 N.E. 1108 (1913)). Extending liability in such cases, the Court of Appeals has held, does not violate the constitutional protections of freedom of speech (Spahn v. Julian Messner, Inc., 21 N.Y.2d 124 (1976)).
To determine the merit of Porco’s claim, the Appellate Division focused on one fact (only): the film’s producer had written a letter to the plaintiff’s mother indicating that she was involved in the production of a documentary intended to accompany the film that she “hope[d]…[would] provide the platform for [the mother’s] family to state their position in a non-fictional program after the [film] airs”.
Viewing the letter in the light most favourable to the plaintiff — the standard of review in a motion to dismiss — the Appellate Division found it reasonable to infer that the producer’s letter indicated that the film was considered to be a fictitious program. Accordingly, the court concluded, it could not be said that the plaintiff had failed to sufficiently allege the same degree of fictionalization as that which had been found to violate the statutory right to privacy without running afoul of constitutional protections of speech in Spahn and Binns.
Consequently, the Appellate Division held, the defendant’s motion to dismiss should have been denied.
Comment
(i) The Appellate Division’s decision (barely 5 pages) gives unduly short shrift to the newsworthiness exception.
First, the producer’s letter, of itself, cannot constitute sufficient evidence to hold that the film was so infected by fiction, dramatization or embellishment that it could not be said to fulfill the purpose of the newsworthiness exception. The making of a “non-fictional program” in parallel to a film does not, without more, strip that film of its non-fictional elements.
Second, the degrees of fictionalization that have been found to violate 50/51 without running afoul of the protection of free speech differed significantly from the case at hand.
In Binns, the plaintiff had obtained wide notoriety for the heroism he had displayed rescuing passengers during a ship collision. He sued the defendant for using his picture in a “moving picture” purporting to show the ship wreck and exhibiting him in a “ridiculous posture”. The moving picture, the Court of Appeals held, was not representative of the shipwreck and merely used the picture “to amuse those who paid to be entertained”. In Spahn, the defendant published a fictionalized biography of a well-known baseball pitcher, in which the author used invented dialogue, imaginary incidents and attributed thoughts and feelings.
The Appellate Division did not explain how Lifetime Entertainment’s film contained similar degrees of fictionalization to the “moving pictures” in Binns or the fictional biography in Spahn. Contrary to those works, Lifetime Entertainment’s movie is based on Christopher Porco’s life, is entitled “Rome Killer: The Christopher Porco Story” and followed not only local, but extensive national coverage by the media. There is nothing in the Appellate Division’s decision that suggests Lifetime Entertainment invented a biography of Porco’s life, or imagined the events at issue.
Finally, Binns (1913) and Spahn (1967) are now dated decisions. A closer reading of both cases makes it clear that these decisions were heavily shaped by the profit making motives of the defendants. Since then, a number of Court of Appeal decisions have emphasized that the newsworthiness exception applies irrespective of the defendant’s profit motives. See e.g. Arrington v. N.Y. Times Co., 55 N.Y.2d 433, 440, 434 N.E.2d 1319, 1322 (1982); Stephano v. News Grp. Publications, Inc., 64 N.Y.2d 174, 184–85, 474 N.E.2d 580, 585 (1984); Messenger ex rel. Messenger v. Gruner + Jahr Printing & Pub., 94 N.Y.2d 436, 442, 727 N.E.2d 549, 552 (2000). This subsequent line of cases, which provides important context to the newsworthiness exception, does not feature in the Appellate Division’s opinion.
(ii) Missing the bigger picture — “expressive” vs purely “commercial” works
Lifetime Entertainment’s film was undoubtedly an “expressive” work, deserving of the highest First Amendment protection: a consideration which does not appear anywhere in the Appellate Division’s decision.
This lack of discussion re the “expressive” nature of a challenged work is not new. In Nieves v. HBO, Inc., 30 A.D.3d 1143 (2006), a woman sued under 50/51 after she had been filmed and appeared in a reality TV show where her sexual allure had been commented on. The New York Supreme Court merely concluded HBO had failed to demonstrate that the use of the plaintiff’s image had a “real relationship” to the subject matter of the show. The words “First Amendment” did not appear in the decision.
And yet, as early as 1965, that same Supreme Court was persuaded by the argument that 50/51 “was mainly designed to operate in connection with the sale of goods and services” and its application to works involving literary and artistic expression protected by the First Amendment “remote from the Legislature’s contemplation”. Univ. of Notre Dame Du Lac v. Twentieth Century-Fox Film Corp., 22 A.D.2d 452, 456, 256 N.Y.S.2d 301, aff’d, 15 N.Y.2d 940, 207 N.E.2d 508 (1965), cited recently by Justice Tom, concurring in Nussenzweig v. diCorcia, 38 A.D.3d 339, 346, 832 N.Y.S.2d 510, certified question answered, order aff’d, 9 N.Y.3d 184, 878 N.E.2d 589 (2007).
The chilling effect of imposing liability under 50/51 on creators of expressive works like Lifetime Entertainment was surely not in the Legislature’s contemplation. Filmmakers need a degree of creative license when producing biographic works. While anchored in facts, biographic films will often trace a person’s life with a degree of dramatization — The Wolf of Wall Street, American Sniper, The Social Network, Spotlight and Sully, being but some recent examples. Were these movies too infected with dramatization and embellishment to be protected by the First Amendment? The Appellate Division’s decision would seem to suggest so.
Whether the case will be appealed remains to be seen. It certainly presents an interesting opportunity for a new Court of Appeals decision on § 50 and 51 — the last one dates from 2007, Nussenzweig v. diCorcia, 9 N.Y.3d 184, 878 N.E.2d 589 (2007).
Ed Klaris is the founding partner of Klaris Law PLLC. Alexia Bedat is an Associate at the firm.
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