Docudramas, created without permission of the subjects, may face new challenges in New York

Docudramas, created without permission of the subjects, may face new challenges in New York

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.   http://law.justia.com/cases/new-york/appellate-division-third-department/2017/522707.html

Marc Jacobson
marc@marcjacobson.com