Hidden Figures. The King’s Speech. Moneyball. The Big Short. Zero Dark Thirty. And on and on…
What these films have in common is that they are inspired by real-life stories about real-life people. And according to the Motion Picture Association of America, such works are now under threat, thanks to a ruling in February from a New York appeals court which revived a lawsuit from the convicted murderer Christopher Porco against Lifetime Television over the ripped-from-the-headlines television movie Romeo Killer.
On Monday, Lifetime submitted a bid for a re-argument at the appeals court, and sensing danger, the MPAA along with HBO submitted an amicus brief, as did The Reporters Committee for Freedom of the Press, NBCUniversal, The New York Times Company and other media organizations.
Porco claims the Lifetime film about his murder and attempted murder of family members violates New York Civil Rights Section 51, a privacy statute allowing an individual to seek redress if his or her “name, portrait, picture or voice is used … for advertising purposes or for the purposes of trade without the written consent first obtained.”
Lifetime attempted to shield itself by raising an exception for newsworthiness, but appellate judge William McCarthy wrote that newsworthiness can be overcome by fictionalization.
But if that’s true, the MPAA warns (here), many acclaimed films and TV shows about real people and events may never have been made. The studio trade association says the prospect of facing a Section 51 claim in New York where “fictionalization” engenders legal risks could dissuade creators from pursuing a project. Indeed, the MPAA says its members have already received threats from individuals attempting to censor with citations to the Porco decision.
“Taken to the extreme, the critically acclaimed television docudrama The People v. O.J. Simpson: American Crime Story might have been mired in litigation if Simpson could have survived a motion to dismiss by filing a lawsuit from his prison cell alleging that the series was not newsworthy because it was substantially fictionalized, despite its fidelity to the facts,” states the MPAA brief authored by attorneys Sam Bayard and Robert Balin at Davis Wright Tremaine. “Orson Welles might never have made Citizen Kane, because it is inconceivable that William Randolph Hearst would have consented to having his ‘persona’ depicted. And Steven Spielberg might have found insurmountable challenges in making the epic film Saving Private Ryan, which was inspired by the true story of Sgt. Frederick Niland — a real-life paratrooper in the 101st Airborne Division whose three brothers were killed in action.”
In its own motion (here), Lifetime argues that the appeals court made a fundamental error by relying on a letter written by Porco’s mother to CBS — characterized as “inadmissible hearsay” — to draw the inference that fictionalization could be demonstrated in Porco’s lawsuit. Although it’s highly uncommon for re-argument to be granted on such an issue, Lifetime feels it’s appropriate here. In the alternative, the cable network wants a New York appeals court to take up the broader question of whether the First Amendment prohibits liability for use of a person’s name in a “substantially fictionalized” movie about a newsworthy event.
Lifetime says McCarthy’s ruling relied on a 50-year-old ruling in New York (of interest to legal scholars and baseball fans) to reach the “fictionalization” decision, but that the U.S. Supreme Court has extended constitutional protections to imprecise and fictionalized forms of expression in the intervening decades. One example is Hustler Magazine v. Falwell (1988), which dealt with an offensive statement about a famous religious leader and then became itself partly the basis for a dramaticized film, The People vs. Larry Flynt. More recently, Lifetime cites United States v. Alvarez (2012), in which the high court struck down a law that criminalized lying about having a military medal.
There’s also ample discussion of Messenger v. Gruner + Jahr Printing & Publishing, which involved a magazine’s photo shoot of a 14-year-old, because it dealt directly on the issue of the use of someone’s likeness in a substantially fictionalized context. There, a New York appeals court determined there could be no legal recovery based on the fictionalization of a newsworthy event so long as there’s some relationship between the plaintiff and the non-commercial speech.
Now that the New York appeals court has gone the other way, Lifetime is putting films like Wolf of Wall Street, Argo, Milk and Charlie Wilson’s War on the endangered list while the MPAA and HBO has its own examples.
Various news outlets and media interest groups have their own reason for urging a do-over. According to that amicus brief (here), they are worried about expanding liability in an age of newer ways to deliver journalism.
States the brief, “While the different methods employed may change the way a story is told, that alone does not diminish the truthfulness of one form of storytelling merely because the reporter does a follow-up using another format. For that reason, the issue presented by this case — namely, the scope of liability under Section 51 for the creation and dissemination of factual information in a dramatic format, particularly if that format is viewed as the opposite of a factual or ‘nonfiction’ work — is an issue of existential significance to the news media, and one that warrants consideration by the Court of Appeals.”