N.Y. Appeals Court Rejects Misappropriation Claim Over 'Romeo Killer' Docudrama
Under this ruling, a docudrama about a newsworthy subject can give rise to a misappropriation claim in New York only if it misleads viewers into believing that it is entirely accurate.
The Bottom Line
A New York appeals court ruling on June 24 provides much-needed clarity to film and television producers and entertainment companies that docudramas blending true facts with dramatic elements are protected from commercial misappropriation claims.
In a unanimous decision, New York’s Appellate Division, Third Department, reversed the court’s denial of summary judgment to Lifetime® network, and dismissed the complaint, in a long-running case over a made-for-television movie about a horrific crime. Convicted murderer Christopher Porco first filed the lawsuit from his prison cell in 2013, asserting a claim under New York Civil Rights Law § 51, which provides a cause of action for the unauthorized use of a person’s “name, portrait, picture or voice” for advertising or trade purposes. The Lifetime movie, Romeo Killer: The Chris Porco Story, told the story of Porco’s attack on his parents with an axe in his childhood home and the investigation and prosecution that followed.
New York courts have consistently recognized an exception to Section 51 for accounts of newsworthy events and matters of public interest, even when they are distributed for profit. But Porco contended—relying on two decades-old cases from New York’s highest court—that the newsworthiness exception did not apply because the movie was a “materially and substantially fictionalized biography” rather than a news report.
The trial court denied Lifetime’s motion for summary judgment on that theory. According to the judge, dramatic devices such as invented dialogue, fictional and composite characters, and flashbacks created a jury question as to whether the movie was materially and substantially fictionalized.
In its June 24 opinion, the Third Department emphasized that Section 51 must be construed narrowly “to avoid a fatal conflict with the free dissemination of thoughts, ideas, newsworthy events, and matters of public interest guaranteed by the First Amendment.” The court then explained that a docudrama about a newsworthy topic can be subject to Section 51 only if it “mislead[s] the viewer into believing that it [is] entirely accurate." The Lifetime movie made “no effort to present itself as unalloyed truth or claim that its depiction of plaintiffs was entirely accurate,” and thus could not give rise to liability under Section 51. In reaching its conclusion, the court noted that the Lifetime movie included a disclaimer at the beginning alerting viewers that it was only “[b]ased on a true story,” and another disclaimer at the end reiterating that it was “a dramatization” in which “some names have been changed, some characters are composites and certain other characters and events have been fictionalized.”
The Third Department’s decision provides welcome guidance about the scope of Section 51 to creators and distributors of docudramas and other semi-fictional works. It also aligns New York law with the many other jurisdictions that have held misappropriation and right of publicity claims to be inapplicable to docudramas under state law or the First Amendment.
Lifetime was represented in the case by Dave Schulz, Chuck Tobin, and Lizzie Seidlin-Bernstein of Ballard Spahr’s Media & Entertainment Law Group.
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