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New York Trial Court Denies Cross-Motions for Summary Judgment in Docudrama Misappropriation Case

By Elizabeth Seidlin-Bernstein

A state trial court has denied the parties' cross-motions for summary judgment on the question of whether New York's commercial misappropriation statute, Civil Rights Law § 51, applies to a made-for-television movie about a heinous murder and attempted murder that used the name of the convicted murderer and his mother without their permission. Porco v. Lifetime, Index No. 2013-0190 (N.Y. Sup. Clinton Cty. May 15, 2020).

The decision in this long-running case raises important questions about the application of Section 51 to fictionalized accounts of newsworthy events and the scope of First Amendment protection for docudramas and other expressive works.

Background

Christopher Porco was convicted in 2006 of brutally murdering his father and maiming his mother with an axe while they were asleep in their family home. He is now serving a prison sentence of fifty years to life in upstate New York. In early 2013, Mr. Porco filed suit against Lifetime to stop the network from airing a made-for-television movie about his crimes and prosecution. Mr. Porco claimed that Section 51 barred the use of his name without consent in the movie. He initially won a temporary restraining order against Lifetime, which was swiftly reversed on appeal. The movie, entitled Romeo Killer: The Chris Porco Story, was broadcast in March 2013.

The trial court subsequently granted Lifetime's motion to dismiss the complaint for failure to state a claim, holding that the movie fell within the exception to Section 51 for works addressing newsworthy subjects. Mr. Porco appealed the dismissal to the Appellate Division, Third Department. The Reporters Committee for Freedom of the Press and twenty-two additional media organizations filed an amicus brief urging the Third Department to construe the newsworthiness exception broadly and affirm the dismissal. In February 2017, however, the Third Department reversed, invoking a 50-year-old Court of Appeals decision involving an unauthorized biography about a professional baseball player, Spahn v. Julian Messner, Inc., 21 N.Y.2d 124 (1967), and a century-old decision involving a film recreation of the plaintiff's rescue of passengers from a shipwreck, Binns v. Vitagraph Co. of Am., 2010 N.Y. 51 (1913). Binns and Spahn, as construed by Third Department, held that the newsworthiness exception to Section 51 does not apply when the "defendant knowingly produced a materially and substantially fictitious biography." Giving Mr. Porco "the benefit of every favorable inference," the Third Department concluded that his complaint sufficiently alleged material fictionalization to survive a motion to dismiss.

With amicus support from the Motion Picture Association of America and HBO, Lifetime filed a motion for re-argument of the Third Department's decision or, in the alternative, for leave to appeal to the Court of Appeals. It contended that the Third Department's decision was inconsistent with the Court of Appeals' holding in Messenger v. Gruner + Jahr Printing & Publishing, 94 N.Y.2d 436 (2000), that even a "substantially fictionalized" use of a person's image in a newsworthy account is not actionable under Section 51 so long as (1) there is a real relationship between the image and the account, and (2) the account is not an "advertisement in disguise." Lifetime further argued that imposing liability under Section 51 when a newsworthy story is retold in dramatic fashion would contravene the strong First Amendment protections developed in the 50 years since Spahn was decided. On June 1, 2017, the Third Department denied Lifetime's motion without an opinion.

After the case returned to the trial court once again, Joan Porco – Christopher Porco's mother and victim – was permitted to join as an additional plaintiff pending discovery on the disputed question of whether Lifetime had republished the movie within the one-year statute of limitations. The parties then engaged in discovery limited to the question of whether the movie was materially and substantially fictionalized, reserving until later issues such as actual malice or damages.

In July 2018, Lifetime moved for summary judgment, arguing that its film is distinguishable from the works in Binns and Spahn, which were false accounts presented to the public as true, because Romeo Killer made clear that it was a fictionalized portrayal. Unlike the works in Binns and Spahn, Romeo Killer contains disclaimers fully disclosing that it is a "dramatization" only "based on a true story," and that "some names have been changed, some characters are composites and certain other characters and events have been fictionalized." Lifetime identified more than 150 true facts in the movie that were drawn from real life, including key aspects of Mr. Porco's crime, the investigation and prosecution, and his relationships with family and friends.

The motion also identified dozens of instances of movie dialogue taken verbatim, or nearly so, from the transcript of Mr. Porco's criminal proceeding and news reports. Based on this evidence, Lifetime argued, the movie bears a "real relationship" to a newsworthy subject and plaintiffs could not establish as a matter of law that it is so materially and substantially fictionalized as to fall outside Section 51's newsworthiness exception. Finally, Lifetime argued that if the plaintiffs' view of Section 51's application to expressive works were correct, it would violate the First Amendment.

Christopher and Joan Porco opposed Lifetime's motion and filed a cross-motion for partial summary judgment on the question of liability. They argued that the "real relationship" test has no application to fictionalized biographies because the Court of Appeals in Messenger distinguished Binns and Spahn rather than explicitly overruling them. They further argued that, despite the movie's portrayal of "some major events in their lives," Lifetime's admitted use of dramatic devices to portray those events renders the movie materially and substantially fictionalized. The cross-motions were fully briefed last year, and oral argument was held in January 2020.

The Trial Court's Summary Judgment Decision

In May, the trial court issued its decision denying the cross-motions for summary judgment. While recognizing that the underlying story was "undoubtedly" newsworthy and "the film contains many elements drawn from truth," the court held that it could not grant summary judgment to Lifetime because the film also contains dramatic devices common to the genre: characters with fictional names, composite characters, invented dialogue, conversations moved to different settings than where they actually took place, and imagined interviews with the characters to advance the movie's themes.

The court also found that the film's title, Romeo Killer, is "an apparent dramatization" because the evidence presented by Lifetime of Mr. Porco's romantic entanglements and female supporters was not sufficient to establish that he was a "Romeo." While recognizing in a footnote that a plaintiff cannot "recover for a fictionalized account of true events where it is obvious to the viewer that the content is fictitious," the court did not address Lifetime's contention that the movie's disclaimers put viewers on notice that of the movie was not literally true, but rather was a fictionalized piece of entertainment. The court denied the plaintiffs' cross-motion for summary judgment as well, holding that they had not met their burden of proving the movie is materially and substantially fictitious as a matter of law.

The court based its ruling on the notion that materiality is an issue for the trier of fact and expressed doubt that the question could ever be resolved on summary judgment. In addition, the court quoted Sutton v. Hearst Corp., 277 A.D. 155 (1st Dep't 1950), for the proposition that the trier of fact must "determine whether the [film is] educational or informative, or whether the primary purpose" is "to amuse and astonish." As Lifetime argued in its summary judgment briefing, the Court of Appeals has long since rejected that approach – most recently in Lohan v. Take-Two Interactive Software, Inc., 31 N.Y.3d 111 (2018), in which the Court observed that Section 51 does not encompass "works of humor, art, fiction, and satire."

Lastly, the court rejected Lifetime's argument that the application of the standard advocated by the plaintiffs would violate the First Amendment, citing the U.S. Supreme Court's 1967 decision in Time Inc. v. Hill, 385 U.S. 374 (1967), and the Third Department's earlier ruling in this case. The court did not address developments in the Supreme Court's First Amendment jurisprudence in the past 50 years, nor the many recent decisions from jurisdictions around the country that have rejected the application of similar claims to expressive works on First Amendment grounds (including, notably, the California appellate court decision in de Havilland v. FX, 230 Cal. Rptr. 3d 625 (Cal. Ct. App. 2018), a case involving strikingly similar facts to Porco).

Conclusion

If left standing, the trial court's decision could have serious ramifications for the makers of docudramas and other works based on real people, well beyond the facts of this particular case. As articulated by the trial court, the "material and substantial fictionalization" standard provides no guidance to creators about how much fictionalization is too much under New York law, and even the use of standard dramatic devices would preclude summary judgment after discovery. The risk of protracted litigation over any use of literary license in a biographical work would, in turn, discourage the creation and distribution of new works in the genre. The Porco case is far from over, however: Lifetime intends to take an interlocutory appeal of the summary judgment decision in order to obtain much-needed clarity about the scope of Section 51 and the First Amendment's protection of expressive works.

David A. Schulz, Charles D. Tobin, and Elizabeth Seidlin-Bernstein of Ballard Spahr LLP represent Lifetime. Plaintiffs Christopher Porco and Joan Porco are represented by Alan J. Pierce of Hancock Estabrook, LLP.

 
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