Docudramas, Even if Partly Fictionalized, Don't Violate N.Y.'s "Commercial Use of Name" Statute

From Porco v. Lifetime Entm't Servs., LLC, decided today by the New York appellate court, in an opinion by Justice Molly Reynolds Fitzgerald:

[A] highly publicized trial ended with plaintiff Christopher Porco being convicted of murdering his father and attempting to murder his mother, plaintiff Joan Porco. This action arose out of defendant's efforts to broadcast a film entitled "Romeo Killer: The Chris Porco Story" that depicted the events surrounding the crime, investigation and criminal prosecution. As set forth in their second amended complaint, plaintiffs allege that defendant violated the statutory right of privacy embodied in Civil Rights Law §§ 50 and 51 via the commercial, nonconsensual use of their names, likenesses and personalities in the film and related promotional material.

[The trial court] found questions of fact as to whether the film's account of events was so materially and substantially fictitious as to give rise to liability. Defendant appeals and plaintiffs cross-appeal.

In order to ultimately prevail in their cause of action, plaintiffs must demonstrate that the film in question rises to the level of a "materially and substantially fictitious biography where a knowing fictionalization amounts to an all-pervasive use of imaginary incidents," culminating in "a biography that is nothing more than an attempt to trade on the persona of the plaintiff." To understand this standard, a discussion of the statutory right to privacy's development and interpretation over time is necessary.

There is no common-law right of privacy in New York, prompting the Legislature to long ago create a limited right of privacy, set forth in Civil Rights Law §§ 50 and 51, that provides for criminal and civil liability where "a living person's 'name, portrait or picture' [is used] for advertising or trade purposes 'without having first obtained the written consent of such person, or[,] if a minor[,] of his or her parent or guardian.'" The statutory language accordingly makes clear that the right is focused upon "the commercial use of an individual's name or likeness," and courts have strictly limited its application to "the use of pictures, names or portraits for advertising purposes or for the purposes of trade only, and nothing more."

As a result of both the narrow scope of the statutory provisions and the need to avoid a fatal "conflict with the free dissemination of thoughts, ideas, newsworthy events, and matters of public interest guaranteed by the First Amendment," courts have recognized that the provisions "do not apply to reports of newsworthy events or matters of public interest," even if the reports were produced with profit in mind. Newsworthiness is given a broad definition and "includes not only descriptions of actual events," but also descriptions of "political happenings, social trends or any subject of public interest." It is therefore clear that "many types of artistic expressions, including literature, movies and theater," whether intended as entertainment or not, can be newsworthy and can further the "strong societal interest in facilitating access to information that enables people to discuss and understand contemporary issues."

The newsworthiness exception will not apply to the depiction of an individual in such a work, however, if the depiction's "newsworthy or public interest aspect … is merely incidental to its commercial purpose." Accordingly, where there is a "lack of a reasonable connection between the use [of an individual's name or likeness] and a matter of public interest," or where the purported aim of the work is to provide biographical information "of obvious public interest, [but the] content is substantially fictionalized" and does not serve that interest, it will not be protected by the newsworthiness exception.

It is that last qualification that poses a problem in this case, as the film at issue is a docudrama, a genre that "deal[s] freely with historical events[,] especially of a recent and controversial nature" by crafting a dramatic presentation that could, in theory, mislead the viewer into believing that it was entirely accurate. As plaintiffs were at the heart of indisputably newsworthy events—namely, a sensational crime in which a couple were savagely attacked as they slept and the subsequent efforts to identify and bring the perpetrator to justice—defendant would be entitled to depict plaintiffs in a "news or informative presentation" about those matters, but would not have free rein to further engage in a "commercialization of [plaintiffs'] personalit[ies]" disconnected from them.

Plaintiffs contend that the film presented itself as a completely accurate depiction of their roles in the newsworthy events while really providing "a materially and substantially fictitious biography where a knowing fictionalization amount[ed] to an all-pervasive use of imaginary incidents," which, if true, would render the depiction little more than an "attempt[] to trade on" the personae of plaintiffs by falsely promising information about their involvement in matters of public interest. The film would, in other words, be an "invented biograph[y]" of plaintiffs that would not "fulfill the purpose of the newsworthiness exception" because it would have no purpose at all beyond the actionable one of exploiting their names and likenesses for profit.

A review of the case law illuminates the situations in which a work claiming to depict an individual's connection to matters of public interest was so removed from those matters as to fall outside of the newsworthiness exception. For instance, although the unauthorized biography of a prominent baseball player would provide information of public interest about the player's life if accurate, the biography gave rise to liability because it was knowingly riddled "with material and substantial falsification," had no informational value and served no purpose beyond "commercial[ly] exploit[ing] [the player's] name and personality" (Spahn v Julian Messner, Inc. (N.Y. 1967)). Similarly, while a daring sea rescue was newsworthy, a filmmaker was held liable for producing and promoting a fanciful dramatization that presented itself as the true story of the rescue and portrayed one of those involved in a manner that bore "no connection whatever with" the incident, did not "instruct or educate" the audience about it, and served no apparent purpose beyond amusing the public and boosting ticket sales….

As noted above, the sensational facts of the crime, the investigation and the trial of Christopher Porco are indisputably events of public interest, and the film therefore qualifies as newsworthy… [T]he film is a dramatization that at times departed from actual events, including by recreating dialogue and scenes, using techniques such as flashbacks and staged interviews, giving fictional names to some individuals and replacing others altogether with composite characters.

The film nevertheless presents a broadly accurate depiction of the crime, the ensuing criminal investigation and the trial that are matters of public interest. More importantly, the film makes no effort to present itself as unalloyed truth or claim that its depiction of plaintiffs was entirely accurate, instead alerting the viewer at the outset that it is only "[b]ased on a true story" and reiterating at the end that it is "a dramatization" in which "some names have been changed, some characters are composites and certain other characters and events have been fictionalized." In our view, the foregoing satisfied defendant's initial burden of showing that the film addressed matters of public interest through a blend of fact and fiction that was readily acknowledged, did not mislead viewers into believing that its related depictions of plaintiffs was true and was not, as a result, "so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception." …

Plaintiffs responded, in essence, by complaining that aspects of their depictions in the film were inaccurate and offensive to them. As the film made clear to viewers that it was a dramatization of newsworthy events and "that the circumstances involved therein were fictitious," the goal of those inaccuracies was obviously not the actionable one of profiting off of plaintiffs by falsely claiming to give viewers the true story of their actions.

Plaintiffs' complaint therefore amounts to little more than the claim that that the film unreasonably placed them in a false light while presenting an account of newsworthy matters with healthy dollops of fiction, but neither a false light claim nor any other common-law privacy tort exists in New York. Thus, as "the right to privacy is governed exclusively by sections 50 and 51 of the Civil Rights Law" in New York, and plaintiffs failed to raise a material question of fact as to whether the degree of fictionalization of the film transformed it into a material and substantially fictitious biography, the purpose of which was an effort to trade off plaintiffs' names and likenesses, defendant was entitled to summary judgment.

Finally, plaintiffs' arguments regarding the use of their names and likenesses in promotional and advertising materials for the film are unavailing, as those materials "cannot reasonably be read to assert that plaintiff[s] endorsed or recommended" the film and were ancillary to the protected use in the film itself….

Thanks to the Media Law Resource Center MediaLawDaily for the pointer.