By: Sara Gates
In an opinion rife with references to adult entertainment and drugs, a judge in the Southern District of New York recently dismissed an invasion of privacy and defamation case over a plaintiff’s apparent depiction in the 2019 film “Hustlers.” See Barbash v. STX Financing, LLC, Case No. 1:20-cv-00123-DLC (S.D.N.Y. Nov. 10, 2020). For the uninitiated, the film was based on a 2015 article in New York Magazine that described a scheme undertaken by a group of adult entertainment hosts and dancers at two clubs in Manhattan who allegedly drugged patrons and stole large sums of money while they were incapacitated. The plaintiff, Samantha Barbash, along with several others were charged for their roles in the scheme, and Barbash ultimately pled guilty to conspiracy, assault, and grand larceny.
Though Barbash herself spoke with the New York Magazine reporter, and later gave other interviews, and published a memoir on the subject, she did not consent to Jennifer Lopez’s depiction of her character in “Hustlers,” so she filed suit against the producers and distributors of the film earlier this year for invasion of privacy, under N.Y. Civil Rights Law § 50 and § 51, over the use of her identity, likeness, and character in the film and marketing materials. She also alleged that six statements and scenes in the film, primarily regarding the preparation and possession of various drug cocktails, were defamatory.
On the defendants’ motion to dismiss, District Judge Denise Cote considered whether New York’s statutory right to protect an individual’s “name, portrait, picture and voice” from commercial appropriation—in the absence of a common law right, which New York does not recognize—also protects an individual’s likeness and character. Looking at the legislative intent that the statute be construed narrowly, and prior case law, the court determined that Barbash’s allegations in her amended complaint that the film’s use of her likeness and character was insufficient to support a claim under N.Y. Civil Rights Law § 50 and § 51.
Turning to the defamation claim, the court considered whether Barbash had alleged the requisite elements for such a claim, focusing on (1) whether the film was “concerning the plaintiff,” (2) whether the statements and scenes were false, and (3) whether, as the defendants argued, Barbash was a limited-purpose public figure, which would require her to allege a higher burden of fault. For the first point, the court questioned whether the plaintiff is recognizable in the film, such that someone who knows her would be able to make her out. Based on the allegations in the amended complaint, which the court accepted as true on the motion to dismiss, this element was satisfied.
For the second point, the court evaluated each of the six statements, one by one, to determine whether Barbash alleged that the statements were “substantially” false, given that “substantial truth” or that the overall gist or substance of the statement is true, is the benchmark to avoid defamation liability in New York. Five of the statements (and accompanying scenes) were drug-related, namely, alleging that the character (1) concocted, (2) manufactured, (3) possessed, (4) used, and (5) provided drugs to individuals without consent. The sixth statement concerned the character’s personality, describing her as cold and indifferent. As the court was able to take judicial notice of Barbash’s guilty plea, in which she pled guilty to conspiracy for providing victims with illegal drugs to gain control of their credit cards, the court determined that her provision of drugs to unconsenting victims was substantially true, and drug possession could be inferred, so these two statements could not support a defamation claim. The court also determined that the sixth statement regarding the character’s personality was non-actionable opinion. The court, however, could not make a determination about the other drug-related statements at this early stage in the case.
Finally, the court turned to the question of whether Barbash was a limited-purpose public figure, which would heighten the level of fault that Barbash would need to prove in order to succeed on her defamation claim. For private persons, a plaintiff litigating a defamation claim in New York (and most other jurisdictions, for that matter), need only show that the defendant was negligent in making the alleged defamatory statement. For celebrities and public figures, however, the plaintiff must demonstrate that the defendant had acted with “actual malice” (i.e., knowledge that statements were false or reckless disregard as to their falsity) in making the statement. The higher burden for public figures serves an important First Amendment purpose and provides breathing room so that people and publishers may engage in free public debate about people in the public eye, that may include some inadvertently false factual assertions without being subject to liability (and, consequently, chilling free speech). Actual malice has also been applied in limited circumstances to private persons who become limited-purpose public figures where they voluntarily inject themselves into a public controversy or issue, seek media attention, and assume a position of prominence in relation to the particular issue.
Arguing for dismissal of the defamation claim, the defendants asserted that, based on Barbash’s criminal conduct, in which she voluntarily injected herself into the public arena, she should be treated as a limited-purpose public figure. The court agreed, relying on Barbash’s 2015 guilty plea, her continued cooperation with the press, including for the 2015 New York Magazine article and 2019 and 2020 Vanity Fair articles after the film was released, both of which included portraits of Barbash, and her 2020 memoir on the events depicted in the film. In opposition, Barbash argued that she should not be required to meet the higher standard because she was unwillingly dragged into the public arena, and that her later interviews were an attempt to set the record straight. The court disagreed, noting that while Barbash is entitled to tell her side of the story, her engagement rendered her a limited-purpose public figure. As such, Barbash would have had to plead actual malice, which she did not do in her amended complaint. For these reasons, the court granted the defendants’ motion to dismiss without resolving whether the remaining statements were legally defamatory.
The Barbash decision adds to a growing body of case law in the Southern District on the proper application of N.Y. Civil Rights Law § 50 and § 51 and the analysis of defamation claims involving films based on prior public articles or records. Barbash confirms that New York’s right of privacy statute remains limited in scope. As to defamation, the plaintiff’s use of the media worked against her, as it provided grounds for the defendants to argue that she rose to the level of a limited-purpose public figure. That may not be available in every case involving prior reports and guilty pleas, especially where the individual did not continue to make themselves available to the media.
In any case involving the use of a person’s likeness and character, filmmakers, producers, and distributors should ensure that they are consulting counsel about rights and clearances, especially because other states’ right-of-publicity laws may have a broader statute or recognize common law privacy rights, and courts in other parts of the country will likely have diverse views on who constitutes a public figure for purposes of defamation.