By Marc Jacobson

An appellate court in New York held recently that a plaintiff, representing himself, who asserts the defendant knowingly produced a materially and substantially fictitious biography about the plaintiff, without the plaintiff’s consent, states a claim for violation of New York’s right of privacy statute, and that the defendant must answer the complaint.  This case, on its face, may suggest a reversal of trends in the entertainment industry which of late has permitted docudramas to proceed without the subject’s consent.

From his prison cell in Dannemora, plaintiff Christopher Porco first successfully obtained an injunction against Lifetime TV Networks’ planned broadcast of a motion picture based upon Porco’s conviction for murder of his father and attempted murder of his mother. That injunction was later reversed as a prior restraint — a violation of the First Amendment — and the case was remanded to the trial court.  On remand, Porco’s complaint was dismissed.  This decision arises from Mr. Porco’s appeal of that dismissal for failure to state a cause of action.

New York’s Civil Rights Law §50 states that when a firm or corporation “uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such a person” the entity commits a misdemeanor.  Section 51 creates a private right of action for such violation, but under relevant case law, the statute does not apply to “newsworthy events or matters of public interest.” Is the film about Porco’s life story fit a newsworthy event or matter of public interest?

In Porco’s case, however, the court noted, however, that the limitations on the statute’s applicability must be viewed in accordance with binding precedent. Where, as in this case, the program is a “substantially fictitious biography” the newsworthy exception will not help the production company or distribution company.  Quoting from Messenger v Gruner + Jahr Print. & Publ., 94 NY2d at 446, the court said that the work “may be so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception.”

In support of his position, Porco submitted a letter sent to him by the producer who noted that she was involved in the production of a documentary intended to accompany the film that the producer “hope[d] . . . [would] provide the platform for [the mother’s] family to state their position in a non-fictional program after the [film] airs.” Relying on the existence of that letter (which is apparently not part of the complaint) and construing the complaint most favorably to the plaintiff, the appellate court found that Porco stated a cause of action, and the defendant must file an answer.

In my opinion, the court bent over backwards to provide recourse to a plaintiff representing himself and allowed this claim to proceed, at this preliminary stage.  When all is said, and done, there remains the possibility that the defendants will not be found to have violated Porco’s rights. At this juncture, the court merely held that the defendants must answer the complaint, and that as required, it construed the complaint in the light most favorable to plaintiff, and in so doing found that a cause of action was stated.

Porco v Lifetime Entertainment Servs., LLC 2017 NY Slip Op 01421 Decided on February 23, 2017 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. The opinion is uncorrected and subject to revision before publication in the Official Reports.

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by Marc Jacobson on February 24, 2017

A basic guide for producers and content creators.

By: Marc Jacobson, Esq.

If you hire young talent in the entertainment industries, be sure their contracts are enforceable.

Imagine you are in charge of an entertainment company.  You shoot your film/TV show, release your recording, or pay an advance for a music or book publishing agreement, and later, even years later, you get a letter in the mail from the minor with whom you signed an agreement, that says “I disaffirm my contract with you” along with a check for the money you paid to that talent.  With that simple letter, the talent has effectively made the assets created by that talent worthless to you, potentially rendering your use of those assets unlawful.  You will need to stop using the film or TV show, or edit out that minor actor’s scenes, or stop releasing the record or using publishing assets you thought you bought. The loss of income to the talent is tiny compared to the cost the entertainment company will incur to change its position because of the loss of rights to those assets.

There is a modest cost to assuring that these contracts are not subject to disaffirmance, and that the entertainment company gets the benefit of its bargain. Remember, the premise is that since minors do not have the legal capacity to sign contracts, the contracts are not binding on the minor. New York and California have well defined court procedures for securing approval of minors’ contracts in the entertainment industry, but many states do not, while other states do not require judicial approval for the contracts to be enforceable.

In New York, contracts with minors for anything other than the minor’s necessities, such as food, clothing and shelter, are voidable by the minor. There’s a whole body of law surrounding what happens when the minor tries to back out of the deal, but in New York, like in California, there is a special proceeding by which an entertainment company can secure judicial confirmation of the contract, making the contract no longer subject to disaffirmance.

While some entertainment companies think a “parental guarantee” makes the agreement enforceable and think it renders the agreement not subject to disaffirmance, the law in New York expressly contradicts that notion.  In fact, New York’s General Obligations Law states that if the entertainment contract is one which the court has jurisdiction to approve, no parent is liable if he or she signed the contract or as a guarantor, unless the contract is approved by the judge.  While there are nuances to that statute, as applied to these agreements, the simple rule is that a parental guarantee does not work in New York.

In securing judicial approval in New York, the minor and his or her parents must appear in court, and testify briefly about the contract, how the production treated them and that they understand the meaning of the contract.  The minor’s education requirements during production are addressed, as well as the term of the contract.  In New York, the term of the contract generally may not exceed three years. The parents will state whether the minor was paid, and whether a portion of the payment, normally 15% of the gross income, was set aside for the minor’s benefit under the court’s control into a “Coogan Account.”  In limited circumstances, other types of minor’s trust accounts may be used in certain states.  Coogan Accounts provide that withdrawals may only be made from the account with the court’s permission and then only for certain limited purposes. When the child turns 18, the money becomes available to the minor.  This account was named for the minor actor Jackie Coogan (who later portrayed Uncle Fester on The Addams Family).  His parents took his money from his acting work when he was a minor, and so the law, originally passed in California, was later passed in New York requiring the creation of these separate, restricted accounts.

In California, only contracts to employ the minor may be approved by the court. So, contracts between the minor and her agent or manager, are not eligible for judicial approval in California.  In New York, on the other hand, agreements where the minor employs an agent or manager may be judicially approved, as well as agreements where the minor is engaged to provide services or create assets.  In California, no in person court appearance is required by either side, and there is a seven-year maximum term on any contract receiving approval. California also requires that 15% of the minor’s gross income be deposited into a Coogan Account.

In New York, counsel appears in court for the entertainment company. While having a representative from the entertainment company present at the court hearing is always a good idea, it is not a requirement to secure judicial approval. Frequently, the parents and the minor appear without counsel.

In New York County (Manhattan) Supreme Court, one judge is assigned to hear all these cases, and she makes the proceedings friendly and cordial. Because the proceedings involve a minor, the courtroom is sealed so that only the participants in this case are present during the hearing.  If requested, the entire record may be sealed, so that none of the papers filed, including personal information, can be seen by the public.  This process of sealing the record is challenging, but very important.

In New Jersey and Georgia, for example, there is no statutory authority for a separate proceeding to secure judicial approval of a minor’s contract. But in Georgia, if the contract is signed as part of the minor’s trade or business, the contract is enforceable, and no proceeding is necessary.  In the absence of a similar statute in New Jersey, and the absence of a special proceeding, the producer may run the risk that the minor disaffirms the contract up to the time the minor reaches the age of majority, or shortly thereafter.

As you embark on your entertainment industry project, and engage with minors, make sure those agreements are enforceable.  It is not hard, it is a little bit of a pain, but in the long run, it is worth the trouble.

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Queen May Dislike Trump but Artists Have Limited Say in Who Uses Their Music

July 25, 2016 By PAUL BLAKE – Jul 20, 2016, 7:38 PM ET House lights fade down. Backlights fade up. Cue music. Pause for effect. And enter the candidate stage right. As Donald Trump emerged on the stage in Cleveland on Monday night, silhouetted against bright lights with Queen’s “We Are the Champions” playing in background, the crowd […]

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Darlene Love v. Google – Are Publicity Rights Needed in Addition to Master & Sync Licenses?

February 16, 2016

By David Jacob Darlene Love v Google Are Publicity Rights Needed in Addition to Master & Sync Licenses? A recent lawsuit filed on behalf of Darlene Love against Google and its ad agency, 72 & Sunny, may have far-reaching implications on long-standing music licensing practices. When ad agencies or brands want to use a song […]

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Proposed Legislative Language to Amend the Definitions of “Theatrical Employment Agency” Under NYS GBA and NY Arts and Cultural Affairs Law

February 12, 2016

By Marc Jacobson and Steve Richman The Entertainment Arts and Sports Law Section (EASL) of the New York State Bar Association (NYSBA) recommended to the Executive Committee of the NYSBA that legislation be introduced and enacted amending the definition of “Theatrical Employment Agency” to specifically exempt attorneys duly licensed and actively practicing in the State […]

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Proposed Legislative Language to Amend the Definitions of “Theatrical Employment Agency” Under NYS GBA and NY Arts and Cultural Affairs Law

February 2, 2016

By Marc Jacobson and Steve Richman The Entertainment Arts and Sports Law Section (EASL) of the New York State Bar Association (NYSBA) recommended to the Executive Committee of the NYSBA that legislation be introduced and enacted amending the definition of “Theatrical Employment Agency” to specifically exempt attorneys duly licensed and actively practicing in the State […]

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Section 181 is Back for Film, TV and now Theatrical Productions

December 26, 2015

Congress Gave Certain Entertainment Industry Investors A Christmas Present for 2015 and 2016! Section 181 is Back for Film & TV Projects and Now Theatrical Projects, Too. By Marc Jacobson[1]   Now, certain investors in film and theatrical projects that begin production in 2015 or 2016 may deduct their investment in the year in which […]

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How ‘Blurred Lines’ Could Make Pharrell the New Bill Gates – TIME Magazine

March 13, 2015

By Adam Ragusea, a journalist in residence and visiting assistant professor at Mercer University’s Center for Collaborative Journalism, and also a classically-trained composer. Music experts may think the ruling was outrageous, but a precedent set by the tech industry may mean it sticks. Count me among those who were infuriated by Tuesday’s “Blurred Lines” verdict. […]

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Fixated on Garcia – NYSBA Entertainment, Arts and Sports Law Journal

August 31, 2014

By Marc Jacobson and Marc Pellegrino Two Federal courts, one in California and the other in New York, recently decided cases involving the question of whether, in the absence of a contract or work-for-hire agreement, a contributor to a film may receive a separate copyright interest in his or her respective contribution, such that he or she might enjoin the […]

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Registering Multiple Musical Works in a Single Copyright Registration – NYSBA Entertainment, Arts and Sports Law Journal

August 31, 2013

By Marc Jacobson and Marc Pellegrino A Reply to: Does Registering Multiple Works in a Single Application Limit Remedies for Copyright Infringement? (EASL Journal (Fall/Winter 2012) (Vol. 23, No. 3)) Introduction The article entitled “Does Registering Multiple Works in a Single Application Limit Remedies for Copyright Infringement,” appearing in the Fall/Winter 2012 EASL Journal, written by Steve Gordon, Esq., […]

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