n June 24, a New York appeals court ruled in favor of docudrama makers in Porco v. Lifetime Entertainment Services, LLC,clarifying when filmmakers and producers who make unauthorized use of an individual’s name or likeness are shielded from liability under New York’s statutory right of publicity. The decision is a victory for First Amendment advocates and the media and entertainment industries in general, more clearly delineating the freedoms afforded to creators of docudramas when conveying important matters of public interest. Prior right of publicity cases in New York have not directly addressed the genre of docudramas and this case harmonizes New York law with other jurisdictions, most notably California.
Plaintiff Christopher Porco, who was convicted of brutally murdering his father and attempting to murder his mother, sued Lifetime over the docudrama entitled Romeo Killer: The Chris Porco Story, which depicted the events surrounding the murder in a semi-fictionalized manner. Porco alleged that Lifetime made a commercial, nonconsensual use of his name and likeness and that the docudrama was highly inaccurate, violating New York’s statutory right of publicity found in Civil Rights Law Sections 50 and 51. Lifetime argued that there was no such violation because the film used Porco’s name and likeness in reasonable relation to newsworthy events, invoking the “newsworthiness” exception. The trial court denied both parties’ motions for summary judgement, holding that there were issues of fact relating to whether the film was so materially and substantially fictitious that it no longer served the goal of conveying newsworthy information.
On appeal, a panel of the New York Supreme Court Appellate Division, Third Department explained that to prevail on his claim, Porco needed to demonstrate that Lifetime knowingly fictionalized incidents and made a substantially fictitious biography solely to trade on Porco’s persona. The court’s analysis delved into the history and interpretation of New York’s statutory right of publicity, which was enacted over a century ago to provide limited civil and criminal liability for the nonconsensual, commercial use of a living person’s name or likeness for advertising or trade purposes. New York courts have long recognized that this narrow right must be balanced against First Amendment guarantees of free speech, and as such, have carved out an exception for newsworthy events and matters of public of interest, even if the ultimate use is for profit. According to the court, many diverse forms of expression—even those created mainly for entertainment purposes—can be considered newsworthy because they provide audiences with access to information about various subjects of public interest.
However, the exception does not apply when biographical information is so fictionalized that it no longer serves the goal of providing that information to the public. Where to draw the line was the key question at issue in Porco, and is one that is relevant to all docudramas, a genre rooted in presenting historical events in an entertaining manner that risks misleading viewers as to the complete accuracy of the events. Porco’s sensational, newsworthy crime made it a likely candidate for a true crime docudrama, which Lifetime did not need Porco’s permission to create as long as the filmmakers did not create a fictionalization of the events that would no longer serve the goals of the newsworthiness exception.
Porco argued that Lifetime’s film was fictionalized to the point of being an “invented biography” that no longer fit within the scope of the newsworthiness exception. The court reviewed case law in which the newsworthiness exception did not apply, including where a writer was held liable for an unauthorized biography of a baseball player that included so much “material and substantial falsification” that it no longer served the purpose of providing access to information of public interest, and where a filmmaker was held liable for a “fanciful” dramatization of the true story of a “daring sea rescue” that would have had newsworthy value had it bore any relation to the actual event.
The court ultimately found Porco’s case distinguishable from these precedents. After the court reviewed the film, a timed dialogue script, media interviews, and transcripts from Porco’s real-life criminal trial, it concluded that the film satisfied the newsworthiness exception. Despite the dramatization of certain elements in the film—such as recreation of dialogue, use of flashbacks and staged interviews, and use of fictional names and composite characters—the film constituted a “broadly accurate depiction of the crime.” Additionally, the court emphasized the critical fact that Lifetime acknowledged and informed viewers, both in the beginning and at the end of the film, that the events were dramatized and “based on” a true story. This disclaimer, the court held, was necessary to prevent viewers from believing that the film’s depiction of Porco was entirely true.
In sum, the court held the newsworthiness exception applied even to highly dramatized works as long as the work does not mislead viewers into believing that embellished depictions of individuals or events are entirely true. For these reasons, the Appellate Division reversed the trial court’s denial of Lifetime’s summary judgement motion because Porco failed to raise an issue of material fact as to whether the film amounted to a fictitious biography that defeated the goal of conveying information about a matter of public interest.
As a point of comparison, the 2018 California case de Havilland v. FX Networks, LLC similarly addressed the unauthorized use one’s persona, specifically the name and likeness of actress Olivia De Havilland in a docudrama series entitled Feud: Bette and Joan. The California Court of Appeals, in also ruling in favor of the defendant, focused more on the importance of First Amendment protections of docudramas measured not necessarily by their newsworthiness, but by whether they are merely advertisements for the sale of goods or services, whether the depictions of the plaintiff were transformative, and whether the work primarily derives its value from those depictions. While their rationales differed, both the de Havilland and Porco decisions resulted in broader freedoms for producers and filmmakers of docudramas to rely on the First Amendment—framed by court-articulated guideposts—as a shield for their creative works. Both discussions complement each other and provide a broader understanding of increasing protections for hybrid fictional/factual works in the entertainment and media epicenters of the country.
In light of the Porco ruling, New York creators of docudramas may use an individual’s name and likeness as long as the overall work remains generally accurate and any dramatizations and fictionalizations are made clear to the audience through the use of disclaimers and other disclosures that the work, while based on true events, is not meant as a purely factual depiction of history.
Filed in: Entertainment, Legal Blog, Litigation
July 1, 2021