It sounds like a bad twist in a movie-of-the-week: A convicted murderer shakes down an entertainment company, demanding payment and editorial control over a movie about his crime. Except the case of Chris Porco, dubbed “the Romeo Killer,” isn’t just a movie.
In an unusual decision last month, a New York appellate court ruled that Lifetime Entertainment might have to pay convicted murderer Christopher Porco for violating his right of publicity by using his name and likeness without permission to tell the story of his crime in its 2013 television docudrama, “Romeo Killer: The Christopher Porco Story.”
The decision in Porco v. Lifetime Entertainment Services is not good news for A&E’s Lifetime cable channel or for the entertainment industry. After years of court decisions saying that the First Amendment protects everything from news to documentaries, books to biopics, courts in recent years have issued conflicting decisions about whether the right of publicity protects fictional works, fact-based works, comic books, and videogames.
Lifetime argued that the New York law right of publicity law should not apply to its true-crime movie because the law is expressly limited to “advertising purposes” and “the purposes of trade.”
Lifetime also reminded the court that the law does “not apply to reports of newsworthy events or matters of public interest.” The appeals court agreed with that argument.
But the court ruled in its Feb. 23 decision that Lifetime’s Porco movie is not the same as a news account because the movie is a “substantially fictitious biography” and “appropriates his name without consent ‘for purposes of profit.’”
David A. Schulz, a lawyer with Levin Sullivan Koch & Schulz in New York who represents Lifetime, said Lifetime will seek review of the decision by the New York supreme court, calling the ruling “deeply disturbing.”
The decision “misunderstands the very nature of a dramatic re-telling of any historic event, and cannot possibly be squared with the First Amendment,” Schulz told TheWrap.
Hollywood does not help itself when it calls its biopics and docudramas “fictionalized.” Courts sometimes do not understand that these movies are based on actual facts and real people and the “fictionalized” parts are often made-up dialogue or composite characters added to create a cohesive narrative.
In the Porco case, the appeals court ruled that works like the Porco movie are “so infected with fiction, dramatization or embellishment” that they do not “fulfill the purpose of the newsworthiness exception.” The court concluded that the Lifetime movie was made “for purposes of profit,” and apparently made the leap that the movie was made “for purposes of trade” and therefore a commercial use outside the First Amendment protection for factual works.
Several media companies signed a friend-of-the-court brief supporting Lifetime, including HBO, NBCUniversal Media, First Look Media, Discovery Communications, CBS Broadcasting, the New York Times, and other news companies.
The media companies point out that plenty of movies are based on real people and historical facts, including “Argo,” “Saving Private Ryan,” “Recount,” “Game Change,” “Too Big to Fail,” “In Cold Blood,” and “Roots.” The companies argued that some movies like “Saving Private Ryan” and “Schindler’s List” “might never have been made were permission needed from (and practically speaking editorial control had to be given to) every living individual involved in the events depicted in those films.”
“Whether one calls it history, art, a fictionalized movie, or a docudrama, a work such as this has always received full First Amendment protection,” the media companies argued.
The battle to win First Amendment protection in the courts for both fiction and factual works is increasingly an uncertain battlefield for the entertainment industry.
The filmmakers behind the film “The Hurt Locker” defeated a right of publicity lawsuit in the Ninth Circuit Court of Appeals in California, and as did the filmmakers behind another film, “The Perfect Storm,” in the Florida Supreme Court.
“The Perfect Storm” is similar to Lifetime’s Porco TV movie: both are based on real events and real people but relied on some fictional dialogue and composite characters.
But Electronic Arts, the videogame giant, lost a series of right of publicity lawsuits on both coasts. The Ninth Circuit and the Third Circuit Court of Appeals ruled that the right of publicity required EA to pay football players for the use of their likeness and statistics on “fantasy” sports videogames. The courts said that the videogames were not protected by the First Amendment because the games were factual depictions of real players playing football, and did not add any artistic changes to transform the players.
In the Porco case, the court barely mentioned the First Amendment, saying it was relying on New York court decisions that found the right of publicity statute imposed liability for fictional works.
But without this First Amendment protection, a convicted killer like Porco could demand not only a significant payment, but also editorial control, allowing him to demand that he be portrayed in a favorable light by a top-dollar actor as a condition of his consent.