Christopher Porco was convicted in 2006 of murdering his father and severely injuring his mother with a fireman’s ax as they slept in their home in Bethlehem, New York. After Porco’s crime grabbed headlines across the country, the Lifetime network set out to produce a fictionalized made-for-TV movie about his arrest and conviction.

After learning of the film, Porco filed suit under New York’s Right of Privacy statute, N.Y. Civ. Rights §§ 50, et seq., against Lifetime Entertainment Services LLC to prevent it from broadcasting the movie.Porco v. Lifetime Entm’t Servs., LLC, No. 522707, 2017 WL 703034 (NY. Ct. App. 3d Dep’t Feb. 23, 2017). Section 51 of the Right of Privacy statute allows a person whose “name, portrait, picture or voice” is used “for advertising purposes or for the purposes of trade” without their consent to obtain an injunction restraining the use of their name, portrait, picture or voice, as well as to sue for damages. N.Y. Civ. Rights § 51.

After initiating suit, Porco successfully obtained a temporary restraining order preventing the airing of the film pending a decision in his motion for a preliminary injunction. However, Porco’s victory was short lived, as the Appellate Division, Third Judicial Department, vacated the order. Under the tagline, “the movie Chris Porco doesn’t want you to see,” the movie aired nationally on March 23, 2013. Thereafter, the trial court granted Lifetime’s motion to dismiss Porco’s complaint for failure to state a cause of action.

On appeal, the Third Department was asked to decide whether Porco had adequately alleged that Lifetime’s movie was sufficiently fictionalized so as to take it out of the newsworthiness exception to liability under § 51. Reviewing New York jurisprudence on the issue, the Third Department explained that liability may attach to a “materially and substantially fictitious biography where a knowing fictionalization amounts to an all-pervasive set of imaginary incidents . . . .” Porco, 2017 WL 703034, at *2 (internal quotation marks and citations omitted). In holding that Porco had met this burden, the Third Department noted that one of the film’s producers had written a letter to Porco’s mother explaining that she was involved in the production of a documentary intended to accompany the film and to “provide the platform for the family to state their position in a non-fictional program” after the film aired. Id. The court concluded this was strong evidence that even Lifetime considered the film to be a fictitious program.

Because the Third Department was only considering a motion to dismiss, the film was not before the court and it made no ruling on whether the film was actually sufficiently fictionalized so as to avoid the newsworthiness exception. Therefore, Lifetime may still succeed at trial if it can show, its letter notwithstanding, that its movie was an accurate portrayal of Porco and his crime. Thus, for the time being, Christopher Porco’s case against Lifetime will proceed in the Supreme Court where it will be decided if the right of privacy in New York protects the unauthorized telling of a convicted murderer's story.