Porco v. Lifetime

Citation

Christopher Porco et. al, v. Lifetime Entertainment Services, LLC
195 A.D.3d 1351 (N.Y. App. Div. 3d. 2021), app. dismissed 37 N.Y.S.3d 1084 (N.Y. Sup. Ct. 2021)
176 A.D.3d 1274 (N.Y. App. Div. 2019) (remanding to trial court)
147 A.D.3d 1253 (N.Y. App. Div. 2017), rev’g, 9 N.Y.S.3d 567 (N.Y. Sup. Ct. 2015)

Summary

On July 21, 2022, the New York Court of Appeals denied Porco’s motion for leave to appeal the ruling below. The case is now concluded.

In June, the appellate court reversed the decision of the trial court and granted Lifetime’s motion for summary judgment and dismissed the case.

The appellate court held that the law does not apply to speech that is newsworthy or is about a matter of public concern. It found that the facts of the crime, investigation, and trial were newsworthy. Although “the film is a dramatization that at times departed from actual facts, 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, [t]he film nevertheless presents a broadly accurate depiction” of the crime, investigation and trial, making no effort to present itself as entirely accurate. In conclusion that court ruled that Lifetime showed that “the film addressed matters of public interest through a blend of fact and fiction that was readily acknowledged, did not mislead viewers … and was not so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception.”

Background

Christopher Porco was convicted in 2006 of the murder of his father and attempted murder of his mother. Lifetime Entertainment created a dramatized version of the story for television called Romeo Killer: the Chris Porco Story.

In 2013, Porco sued Lifetime seeking to block the broadcast of the movie under N.Y. Civil Rights Law section 51, New York’s privacy law. Section 51 functions as New York’s right of publicity law that bars the use of a living person’s name, portrait, or picture for advertising purposes, or the purpose of trade. Porco alleges that the docudrama violates his rights under section 51 because it uses his name without permission, and is not protected by the “newsworthiness” defense as understood under New York case law because the film is “substantially fictionalized.”

Porco moved for a temporary restraining order, which was granted by the trial court. That decision was reversed by the Third Department in 2014. The trial court then granted Lifetime’s motion to dismiss the case in 2015 on the ground that Porco’s allegations failed to overcome the First Amendment. However, in 2017, the 3rd Department again reversed the trial court, holding that Porco’s complaint did state a claim for violation of the statutory right to privacy.

On remand to the trial court, both sides moved for summary judgment. In May 2020, the court denied the parties’ cross-motions for summary judgment, holding that the issue of whether the docudrama was “materially and substantially fictitious” must go to a jury.

The court relied mainly on Spahn v. Julian Messner, Inc., 21 NY 2d 124 (1967). Spahn was decided over 50 years ago and is seldom cited by NY State’s highest court, but has never been overruled. It involved a biography of the pitcher, Warren Spahn, written for a youth audience. The publisher was found liable because the work, while based on facts, was “infected with fiction, dramatization or embellishment,” and thus constituted an unauthorized exploitation of Spahn’s personality for the purposes of trade.

The case went to appeal to the Third Department for the fourth time (there was another appeal on a different issue).

The amicus brief

On October 2, 2020, Media Coalition filed an amicus brief in support of Lifetime. The brief highlights the threat to the book community — from authors to publishers, to bookstores and libraries — presented by the ruling of the trial court. If the Spahn decision is good law, it could prompt lawsuits against a wide range of books, plays and other works that are fully protected by the First Amendment. The brief explains the impact on biographies (both authorized and unauthorized), nonfiction novels and dramas (e.g. Truman Capote’s In Cold Blood and the play “Oslo”), graphic novels of current events, and painting, photographs and other visual works of art.

The brief was signed by American Booksellers Association, Association of American Publishers, Authors Guild, Comic Book Legal Defense Fund, Freedom to Read Foundation, and the Media Coalition Foundation.

Another amicus brief in support of Lifetime was filed by FX, National Geographic, NBCUniversal, Netflix, Paramount, Sony Pictures, ViacomCBS, Warner Media, Discovery, EPIX, Hachette, HarperCollins, Macmillan, Metro-Goldwyn-Mayer, Penguin Random House, and Univision.