Opinion
2013-190
04-15-2015
Christopher PORCO, Plaintiff, v. LIFETIME ENTERTAINMENT SERVICES, LLC, Defendant.
Christopher Porco, Dannemora, plaintiff pro se. Levine Sullivan Koch & Schulz, LLP, New York City (David A. Schulz of counsel), for defendant.
Christopher Porco, Dannemora, plaintiff pro se.
Levine Sullivan Koch & Schulz, LLP, New York City (David A. Schulz of counsel), for defendant.
Opinion
ROBERT J. MULLER, J. Plaintiff was convicted in 2006 of the murder of his father and attempted murder of his mother while they slept in their home. He is currently serving a sentence of 50 years to life in prison. Upon learning that defendant planned to broadcast a movie depicting the events surrounding his crimes and his subsequent prosecution, plaintiff commenced this action alleging a violation of Civil Rights Law § 50 and seeking injunctive relief pursuant to Civil Rights Law § 51. Plaintiff then filed a motion for a preliminary injunction prohibiting defendant from broadcasting the movie pending the outcome of this action. Plaintiff also sought a temporary restraining order pending the return date of the motion. While this Court granted the temporary restraining order, it was subsequently vacated on appeal (see Porco v. Lifetime Entertainment Servs., LLC, 116 A.D.3d 1264, 1267, 984 N.Y.S.2d 457 [2014] ). Plaintiff later withdrew his motion for a preliminary injunction. The movie premiered for a national television audience on March 23, 2013 and, since then, has been rebroadcast from time to time. Presently before the Court is defendant's motion to dismiss the complaint for failure to state a cause of action (see CPLR 3211[a][7] ).
“[T]he standard to be applied on a motion to dismiss for failure to state a cause of action is both familiar and well settled—‘[the Court] must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts fit within any cognizable legal theory’ ” (Rodriguez v. Jacoby & Meyers, LLP, 126 A.D.3d 1183, 1185, 3 N.Y.S.3d 793 [2015], quoting He v. Realty USA, 121 A.D.3d 1336, 1339, 996 N.Y.S.2d 734 [2014] [internal quotation marks and citations omitted]; see People v. Coventry First LLC, 13 N.Y.3d 108, 115, 886 N.Y.S.2d 671, 915 N.E.2d 616 [2009] ).
Civil Rights Law § 50 provides that use of the “name, portrait or picture of any living person” for “advertising purposes, or for the purposes of trade” absent written consent is a misdemeanor. Civil Rights Law § 51 then authorizes a civil action for injunctive relief and damages if a defendant acts knowingly in violation of Civil Rights Law § 50. To state a cause of action under Civil Rights Law § 51, plaintiff must allege that his name, portrait or picture was used without his written consent for purposes of advertising or trade (see Messenger v. Gruner + Jahr Print. & Publ., 94 N.Y.2d 436, 441, 706 N.Y.S.2d 52, 727 N.E.2d 549 [2000], cert. denied 531 U.S. 818, 121 S.Ct. 57, 148 L.Ed.2d 25 [2000] ; Kane v. Orange County Publs., 232 A.D.2d 526, 526–527, 649 N.Y.S.2d 23 [1996], lv. denied 89 N.Y.2d 809, 655 N.Y.S.2d 889, 678 N.E.2d 502 [1997] ; Griffin v. Harris, Beach, Wilcox, Rubin & Levey, 112 A.D.2d 514, 515, 490 N.Y.S.2d 919 [1985] ). “Use for advertising purposes' and use for the purposes of trade' are separate and distinct statutory concepts and violations” (Beverley v. Choices Women's Med. Ctr., 78 N.Y.2d 745, 751, 579 N.Y.S.2d 637, 587 N.E.2d 275 [1991] ; see Flores v. Mosler Safe Co., 7 N.Y.2d 276, 284, 196 N.Y.S.2d 975, 164 N.E.2d 853 [1959] ). Use for advertising purposes “has been defined as use in, or as part of, an advertisement or solicitation for patronage of a particular product or service” ' (Kane v. Orange County Publs., 232 A.D.2d at 527, 649 N.Y.S.2d 23, quoting Beverley v. Choices Women's Med. Ctr., 78 N.Y.2d at 751, 579 N.Y.S.2d 637, 587 N.E.2d 275 ; see Flores v. Mosler Safe Co., 7 N.Y.2d at 284, 196 N.Y.S.2d 975, 164 N.E.2d 853 ). Use for trade purposes “is more difficult to define, and involves use which would draw trade to the firm” (Kane v. Orange County Publs., 232 A.D.2d at 527, 649 N.Y.S.2d 23 ; see Flores v. Mosler Safe Co., 7 N.Y.2d at 284, 196 N.Y.S.2d 975, 164 N.E.2d 853 ; Davis v. High Socy. Mag., 90 A.D.2d 374, 379, 457 N.Y.S.2d 308 [1982],appeal dismissed 58 N.Y.2d 1115 [1983] ).
“It has long been recognized that use of a name or picture by the media in connection with a newsworthy item is protected by the First Amendment and is not considered a use for purposes of trade within the ambit of the Civil Rights Law” (Davis v. High Socy. Mag., 90 A.D.2d at 379, 457 N.Y.S.2d 308 ; see Messenger v. Gruner + Jahr Print. & Publ., 94 N.Y.2d at 441–442, 706 N.Y.S.2d 52, 727 N.E.2d 549 ). “This is true irrespective of the fact that such publications are carried on largely, and even primarily, to make a profit” (id. ; see Messenger v. Gruner + Jahr Print. & Publ., 94 N.Y.2d at 442, 706 N.Y.S.2d 52, 727 N.E.2d 549 ). While the newsworthiness exception “is to be broadly construed” (Messenger v. Gruner + Jahr Print. & Publ., 94 N.Y.2d at 441, 706 N.Y.S.2d 52, 727 N.E.2d 549 ; see Walter v. NBC Tel. Network, Inc., 27 A.D.3d 1069, 1070, 811 N.Y.S.2d 521 [2006], lv. denied 7 N.Y.3d 703, 819 N.Y.S.2d 870, 853 N.E.2d 241 [2006] ; Bement v. N.Y.P. Holdings, 307 A.D.2d 86, 90, 760 N.Y.S.2d 133 [2003], lv. denied 100 N.Y.2d 510, 766 N.Y.S.2d 164, 798 N.E.2d 348 [2003] ), “in the rare case of an article purporting to be newsworthy but in fact ‘so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception,’ ” this exception will not apply (Alfano v. NGHT, Inc., 623 F.Supp.2d 355, 359 [E.D.N.Y.2009], quoting Messenger v. Gruner + Jahr Print. & Publ., 94 N.Y.2d at 446, 706 N.Y.S.2d 52, 727 N.E.2d 549 ; see Edme v. Internet Brands, Inc., 968 F.Supp.2d 519, 529 [E.D.N.Y.2013] ).
Here, the complaint alleges, in pertinent part:
“That ... plaintiff was convicted of murder and attempted murder in Orange County Supreme Court.... The crimes that led to the trial, and the trial itself were subject to extensive media coverage.....
“That [defendant] is engaged in the production and planned widespread telecasting.. of a made for T.V.' movie entitled: Romeo Killer: The Christopher Porco Story.' (The MOVIE')....
“That the MOVIE' is a knowing and substantially fictionalized account, Inspired by a true story,' ... about plaintiff and the events that led to his incarceration. Upon information and belief defendant is utilizing a screenplay, and has retained the services of actors to portray plaintiff and others, and in so doing appropriates plaintiff's name, likeness, and personality for purposes of profit.....
“The use by defendant of plaintiff's name, likeness, and personality for purposes of trade, advertising and commercial benefit, was without the consent, written or oral, of plaintiff or anyone authorized to give such consent, was entirely unauthorized, and constitutes a violation of sections 50 and 51 of the Civil Rights Law of the State of New York.”
While plaintiff includes the perfunctory allegations that defendant used his name for purposes of advertising and trade without his consent, his description of the movie demonstrates quite the opposite. Plaintiff's name was not used for advertising purposes, nor was it used for purposes of trade. Indeed, the movie falls squarely within the newsworthiness exception. Plaintiff himself establishes this fact when he admits in the opening paragraphs of the complaint that the trial was covered extensively by the media. The record reveals coverage not only at the local level, but nationally as well, with the story having been featured on an episode of 48 Hours. Moreover, while plaintiff alleges that the movie is a “substantially fictionalized account” of his story, nowhere does he allege that the movie is so infected with fiction, dramatization or embellishment that it cannot be said to fulfill the purpose of the newsworthiness exception. Plaintiff attempts to equate his case to Binns v.
Vitagraph Co. of Am., 210 N.Y. 51, 103 N.E. 1108 [1913] and Spahn v. Julian Messner, Inc., 21 N.Y.2d 124, 286 N.Y.S.2d 832, 233 N.E.2d 840 [1967]. In those cases, however, “defendants invented biographies of plaintiffs' lives,” leaving “[t]he courts [to] conclude [ ] that the substantially fictional works at issue were nothing more than attempts to trade on the persona of Warren Spahn or John Binns” (Messenger v. Gruner + Jahr Print. & Publ., 94 N.Y.2d at 446, 706 N.Y.S.2d 52, 727 N.E.2d 549 ; see Spahn v. Julian Messner, Inc., 21 N.Y.2d at 127, 286 N.Y.S.2d 832, 233 N.E.2d 840 ; Binns v. Vitagraph Co. of Am., 210 N.Y. at 58, 103 N.E. 1108 ). Plaintiff includes no allegations whatsoever to suggest that defendant invented a biography of his life or wholly imagined the events at issue in an attempt to trade on his persona (compare Spahn v. Julian Messner, Inc., 21 N.Y.2d at 127–128, 286 N.Y.S.2d 832, 233 N.E.2d 840 ; Binns v. Vitagraph Co. of Am., 210 N.Y. at 56, 103 N.E. 1108 ). Even construing the complaint liberally and according plaintiff the benefit of every favorable inference, the Court finds that he has failed to state a cause of action for violation of Civil Rights Law § 51 (see Bement v. N.Y.P. Holdings, 307 A.D.2d at 90–91, 760 N.Y.S.2d 133 ; Kane v. Orange County Publs., 232 A.D.2d at 527, 649 N.Y.S.2d 23 ; Griffin v. Harris, Beach, Wilcox, Rubin & Levey, 112 A.D.2d at 515–516, 490 N.Y.S.2d 919 ).
Based upon the foregoing, defendant's motion is granted in its entirety and the complaint dismissed.
Therefore, having considered the Affirmation of David A. Schulz, Esq. with exhibits attached thereto, sworn to May 16, 2014, submitted in support of the motion; Memorandum of Law of David A. Schulz, Esq., dated May 16, 2014, submitted in support of the motion; Memorandum of Law of Christopher Porco with exhibit attached thereto, dated May 29, 2014, submitted in opposition to the motion; and Reply Affirmation of David A. Schulz, Esq., dated June 10, 2014, it is hereby
ORDERED that defendant's motion is granted in its entirety; and it is further
ORDERED that the complaint is dismissed.
The original of this Decision and Order is returned to counsel for defendant for filing and service with notice of entry. The Notice of Motion dated May 16, 2014 has been filed by the Court together with the above-referenced submissions.