New York Appellate Court reverses dismissal of action against Lifetime for alleged violations of plaintiff’s statutory right to privacy, finding that, accepting all of plaintiff’s allegations as true for purposes of motion to dismiss, Lifetime’s movie about plaintiff’s real-life murder of his father and attempted murder of his mother was so fictionalized that network cannot avoid liability under “newsworthiness” exception to right of privacy actions.
Plaintiff Christopher Porco was convicted in 2006 of murdering his father and attempting to murder his mother. Porco sued Lifetime Entertainment Services in New York state court after learning that the television network was producing and planned to broadcast a movie titled “Romeo Killer: The Christopher Porco Story” based on his crimes. In his 2013 complaint, Porco argued that Lifetime violated the state’s privacy laws, New York Civil Rights Sections 50 and 51, which bar a company from using “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 person.” Early in the proceedings, Porco won a temporary restraining order preventing Lifetime from broadcasting the movie, but that order was vacated by the appellate court. Lifetime aired the movie as planned, and the lower court granted the network’s motion to dismiss for failure to state a cause of action. Porco appealed.
On appeal, the Appellate Division, Third Department, reversed the dismissal of Porco’s complaint. According to the appellate court, New York’s privacy laws are intended to be strictly limited to nonconsensual commercial appropriation of a person’s name, portrait or picture, and these laws “do not apply to reports of newsworthy events or matters of public interest.” However, guided by precedent from New York’s highest court, the appellate court found that the newsworthiness exception does not apply where the portrayal is “a materially and ‘substantially fictitious biography’ … where a ‘knowing fictionalization’ amounts to an ‘all-pervasive’ use of imaginary incidents … and a biography that is ‘nothing more than [an] attempt to trade on the persona’ of the plaintiff.” Most recently, in Messenger v. Gruner + Jahr Print. & Publ., New York’s high court determined that a biographical depiction of a person “may be so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception.” Furthermore, the appellate court found New York’s highest court has already determined that extending liability to creators of substantially fictitious biographies of real persons does not violate constitutional protections of freedom of speech.
Thus, in deciding whether to reverse the dismissal of Porco’s complaint for failure to state a cause of action, the issue before the appellate court was whether Porco had alleged sufficient facts suggesting that Lifetime knowingly produced a materially and substantially fictionalized biography of his life in violation of New York’s privacy laws. Accepting all of Porco’s allegations as true for purposes of his motion to dismiss, and according him the benefit of every favorable inference, the court found that he had done so. First, the court noted that the complaint alleged that the film was a “knowing and substantially fictionalized account” about plaintiff “and the events that led to his incarceration,” and that it appropriated his name without consent “for purposes of profit.” In support of this claim, Porco presented a letter written by a producer of the movie to Porco’s mother, in which the producer explained that she was involved in the production of a documentary that would accompany the movie and that she hoped this documentary would “provide the platform for [Porco’s mother and her family] to state their position in a non-fictional program” after the Lifetime movie aired. Viewing the letter in the light most favorable to Porco, the court found it reasonable to infer that the Lifetime movie was considered to be a work of fiction.
In light of the deferential standard of review on a motion to dismiss, the appellate court determined that Porco had sufficiently alleged the same degree of fictionalization, and the same degree of defendant’s knowledge of such fictionalization, which had previously been found to violate the statutory right to privacy without running afoul of constitutional free speech protections. Accordingly, the appellate court reversed the lower court’s dismissal of Porco’s claims. However, the court emphasized that, at this procedural stage, the film itself was not before the court, and the content of the film would ultimately determine whether it is “newsworthy.”