A man convicted of bludgeoning his father to death with a fireman’s ax and mutilating his mother in 2004 might have the right to collect damages from A&E Lifetime Entertainment for using his name and likeness without permission in the 2013 docudrama “Romeo Killer: The Christopher Porco Story.”  In 2013, Porco attempted to block the film’s release and filed suit pro se against A&E for violating New York‘s right of publicity statute Civil Rights Law § 50, which prohibits the unauthorized use of a living person’s name, portrait or picture for advertising or trade purposes.  The trial court originally enjoined the film’s broadcast, an extreme sanction, which was ultimately reversed on appeal.  A&E then moved to dismiss the case for failure to state a claim and initially succeeded, but the appellate court reversed in a groundbreaking decision.

Copyright: dorian2013 / 123RF Stock Photo
Copyright: dorian2013 / 123RF Stock Photo

The court acknowledged New York’s newsworthiness exception to § 50 which insulates defendants from liability for using a person’s identity in connection with a newsworthy story or matter of public concern, but found A&E could still be liable for using Porco’s likeness in a fictional biography based on a true story.

Porco alleges the film is not a news story but rather a “knowing and substantially fictionalized account” about the events leading to his imprisonment.  In support of his claims, Porco offered a letter written by one of the film’s producers to Porco’s mother that indicated a non-fictional documentary of the case would accompany the film where she could voice her position.  Drawing every inference in favor of Porco, the plaintiff, the appellate court found this evidence sufficient to withstand a motion to dismiss.

Various media companies including HBO, NBCUniversal, First Look, Discovery, CBS and the New York Times rallied to Lifetime’s aid and filed amicus briefs.  They argued countless movies that are based on real individuals and facts (e.g. “Argo,” “Saving Private Ryan,” “Too Big to Fail,” “Roots,” “Schindler’s List”, etc.) would likely have never been made if the filmmakers were required to obtain consent or (worse) afford creative control to every person portrayed in the film.

In California, the creators of the 82nd Academy Award’s Best Picture “The Hurt Locker” defeated a right of publicity lawsuit over the use of Explosive Ordnance Disposal technician Jeffrey Sarver’s identity.  The district court granted the filmmakers’ anti-SLAPP motions to dismiss the suit and the Ninth Circuit affirmed holding “The Hurt Locker” is speech that is “fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life – including the stories of real individuals, ordinary or extraordinary – and transform them into art.”

Although “The Hurt Locker” decision reinforces California’s protection of docudrama producers against right of publicity claims, Fox Rothschild partner David Aronoff remains cautious.  In an interview with The Wrap, Aronoff said “To a large extent, right of publicity claims arise from the desire of persons of public interest to control the context and manner in which they are depicted.   As a result, expansion of the right of publicity could certainly have a chilling effect on creative works, since persons of public interest often want to restrict the uses of their names, likenesses and personas to only whitewashed and sanitized versions of their conduct.”