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COMPLAINT BY PLAINTIFF, WHO HAD COMMITTED MURDER, SUFFICIENTLY ALLEGED THE FILM ABOUT HIM WAS INTENDED TO BE FICTIONAL AND THEREFORE WAS SUBJECT TO THE PRIVACY PROTECTIONS OF THE CIVIL RIGHTS LAW, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED.

The Third Department determined the plaintiff’s complaint, alleging a violation of privacy under Civil Rights Law 50 and 51, stated a cause of action and should not have been dismissed. Plaintiff was convicted of the murder of his father and the attempted murder of his mother. The defendant made a film about the plaintiff and the crime which was aired nationally. Even films which purport to deal with factual, newsworthy events can violate the Civil Rights Law if the films are deemed to have fictionalized the events. The Third Department determined the allegations sufficiently supported plaintiff’s claim that the film was intended to be fictional to avoid dismissal at the pleading stage:

New York provides a limited statutory right of privacy. Pursuant to Civil Rights Law § 50, it is a misdemeanor when a firm or corporation “uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such a person” … . Similarly, Civil Rights Law § 51 allows a plaintiff to “maintain an equitable action in the supreme court of this state against the [firm or corporation] so using his [or her] name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use” … . The Legislature intended for this statutory protection of privacy to be “strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person” … , and these statutory provisions “do not apply to reports of newsworthy events or matters of public interest” … .

The scope of the newsworthiness exception to liability, however, must be construed in accordance with binding Court of Appeals precedent. The Court of Appeals has held that statutory liability applies to a materially and “substantially fictitious biography” … where a “knowing fictionalization” amounts to an “all-pervasive” use of imaginary incidents … and a biography that is “nothing more than [an] attempt[] to trade on the persona” of the plaintiff … . Porco v Lifetime Entertainment Servs., LLC, 2017 NY Slip Op 01421, 3rd Dept 2-23-17

CIVIL RIGHTS LAW (COMPLAINT BY PLAINTIFF, WHO HAD COMMITTED MURDER, SUFFICIENTLY ALLEGED THE FILM ABOUT HIM WAS INTENDED TO BE FICTIONAL AND THEREFORE WAS SUBJECT TO THE PRIVACY PROTECTIONS OF THE CIVIL RIGHTS LAW, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED)/NEWSWORTHINESS EXCEPTION (CIVIL RIGHTS LAW, COMPLAINT BY PLAINTIFF, WHO HAD COMMITTED MURDER, SUFFICIENTLY ALLEGED THE FILM ABOUT HIM WAS INTENDED TO BE FICTIONAL AND THEREFORE WAS SUBJECT TO THE PRIVACY PROTECTIONS OF THE CIVIL RIGHTS LAW, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED)

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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO SET ASIDE HIS CONVICTION... POSSIBLE APPLICABILITY OF THE CONSCIOUS IGNORANCE DOCTRINE PRECLUDED SUMMARY...