New York Appeals Court Revives Convicted Murderer's Lawsuit Over Lifetime Biopic

Too much fictionalization can negate a newsworthiness exception to a privacy statute.
Lifetime's 'Romeo Killer: The Chris Porco Story' (2013)

The "Romeo Killer" is again after Lifetime.

Four years ago, a New York Supreme Court judge threw Lifetime Television into a panic by enjoining the broadcast of Romeo Killer: The Christopher Porco Story, which was based on the true story of Porco's murder and attempted murder of family members. The biopic triggered a lawsuit from Porco himself. After Lifetime quickly brought an emergency motion decrying a "prior restraint" of its free speech, an injunction was vacated. This was later upheld on appeal, and a judge later dismissed Porco's complaint. Now, however, the network must again contend with Porco's lawsuit after a New York Appeals Court reversed the dismissal on Thursday. 

The decision could be troubling for producers of ripped-from-the-headlines TV shows and movies as well as others. The Reporters Committee for Freedom of the Press, for example, attempted to head off Thursday's outcome with an amicus brief.

Porco claimed that the Lifetime film violated New York Civil Rights Section 51, the state's version of a privacy law, which allows a person 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."

New York's law, however, created an exception to liability for newsworthiness, which would seemingly create space for a film that was based on a story literally in the news.

But Porco alleged in his complaint that the film is a "knowing and substantially fictionalized account" about the plaintiff "and the events that led to his incarceration," and that it appropriates his name without his consent "for purposes of profit."

In Thursday's decision, appellate judge William McCarthy writes that precedent makes clear "the fact that a film revolves around a 'true occurrence,' such as a rescue of passengers from a shipwreck, does not invoke the newsworthiness exception in the event that the entire account remains 'mainly a product of the imagination,'" adding that prior holdings have "directly passed on the issue of whether extending liability in the aforementioned manner violated constitutional protections of freedom of speech and has found no such violation."

And what was the killer evidence — at least at the stage where the judges only look at the plausibility of the claim?

Porco "offered a letter written by a producer associated with the film to his mother before the film's release," writes McCarthy. "The producer indicated that she was involved in the production of a documentary intended to accompany the film that the producer 'hope[d] ... [would] provide the platform for [the mother's] family to state their position in a non-fictional program after the [film] airs.' Viewing the producer's correspondence in the light most favorable to plaintiff and according plaintiff the benefit of every favorable inference, it is reasonable to infer that the producer indicated that the film was considered to be a fictitious program."

So in a setback for Lifetime and others in the entertainment industry, the appeals court rules that newsworthiness can be overcome by fictionalization. The case now moves forward and a judge will likely get a chance to consider whether the film hewed closely to facts or was "fake news," a product of imagination. Here's the full opinion.