State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 23, 2017 522707 

________________________________

CHRISTOPHER PORCO,

Appellant,

v MEMORANDUM AND ORDER

LIFETIME ENTERTAINMENT

SERVICES, LLC,

Respondent.

________________________________

Calendar Date: January 18, 2017

Before: McCarthy, J.P., Garry, Lynch, Devine and Mulvey, JJ.

__________

Christopher Porco, Dannemora, appellant pro se.

David A. Schulz, New York City, for respondent.

Davis Wright Tremaine, LLP, New York City (Robert Balin of

counsel), for The Reporters Committee for Freedom of the Press

and others, amici curiae.

__________

McCarthy, J.P.

Appeal from an order of the Supreme Court (Muller, J.),

entered April 20, 2015 in Clinton County, which granted

defendant's motion to dismiss the complaint.

In 2006, plaintiff was convicted of the murder of his

father and the attempted murder of his mother (see generally

People v Porco, 71 AD3d 791, 792 [2010], affd 17 NY3d 877

[2011]). In December 2012, plaintiff discovered that defendant

intended to broadcast a film entitled "Romeo Killer: The

Christopher Porco Story" (hereinafter the film). On January 29,

2013, plaintiff commenced this action pursuant to Civil Rights
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Law §§ 50 and 51, seeking a preliminary injunction to prevent the

airing of the film. Plaintiff's subsequent motion for a

temporary restraining order to prevent the film's broadcast

pending a decision on his motion for a preliminary injunction was

granted by Supreme Court. Defendant appealed and this Court

granted emergency relief to defendant by vacating the temporary

restraining order pending an appeal on the merits and, as

planned, the film was nationally televised on March 23, 2013. 

Supreme Court's order was ultimately reversed and vacated by this

Court (116 AD3d 1264 [2014]). Thereafter, Supreme Court granted

defendant's motion to dismiss the complaint for failure to state

a cause of action. Plaintiff now appeals, and we reverse.

On a motion pursuant to CPLR 3211 (a) (7) to dismiss a

complaint for failure to state a cause of action, this 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 alleged fit within any cognizable legal theory" (He v

Realty USA, 121 AD3d 1336, 1339 [2014] [internal quotation marks

and citations omitted], lv dismissed and denied 25 NY3d 1018

[2015]). 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" (Civil Rights Law § 50). 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" (Civil

Rights Law § 51). 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" (Finger v Omni Publs. Intl., 77 NY2d 138, 141

[1990]), and these statutory provisions "do not apply to reports

of newsworthy events or matters of public interest" (Messenger v

Gruner + Jahr Print. & Publ., 94 NY2d 436, 441 [2000], cert

denied 531 US 818 [2000]). 
-3- 522707 

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" (Spahn v Julian Messner, Inc., 18 NY2d 324, 329

[1966], vacated 387 US 239 [1967], adhered to on remand and rearg

21 NY2d 124 [1967], appeal dismissed 393 US 1046 [1969]) where a

"knowing fictionalization" amounts to an "all-pervasive" use of

imaginary incidents (Spahn v Julian Messner, Inc., 21 NY2d 124

127-129 [1967], appeal dismissed 393 US 1046 [1969]) and a

biography that is "nothing more than [an] attempt[] to trade on

the persona" of the plaintiff (Messenger v Gruner + Jahr Print. &

Publ., 94 NY2d at 446; see generally Lerman v Flynt Distributing

Co., Inc., 745 F2d 123, 131-132 [2d Cir 1984]). When it most

recently addressed the aforementioned principles, the Court of

Appeals explained that a work "may be so infected with fiction,

dramatization or embellishment that it cannot be said to fulfill

the purpose of the newsworthiness exception" (Messenger v Gruner

+ Jahr Print. & Publ., 94 NY2d at 446). As further binding Court

of Appeals precedent makes clear, the fact that a film revolves

around a "true occurrence" (id. at 445), 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" (Binns v Vitagraph Co. of Am., 210 NY

51, 56 [1913]). Finally, the Court of Appeals has 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 (see Spahn v

Julian Messner, Inc., 21 NY2d at 129).

Thus, the issue before this Court is whether plaintiff's

complaint, when given the benefit of every favorable inference,

alleges facts suggesting that defendant knowingly produced a

materially and substantially fictitious biography that violates

the statutory right of privacy.1 Turning to the record,

1 The Court of Appeals has made clear that the

aforementioned line of cases dealing with "invented biographies

of plaintiffs' lives" relate to "strikingly different" scenarios

from those cases where the Court has addressed "the unauthorized,
-4- 522707 

plaintiff alleges that the film is a "knowing and substantially

fictionalized account" about plaintiff "and the events that led

to his incarceration," and that it appropriates his name without

his consent "for purposes of profit." In support of this claim,

plaintiff offered a letter written by a producer associated with

the film to his mother before the film's release. 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. Considering the foregoing and the standard

of review on a motion to dismiss, we cannot say that plaintiff

has failed to sufficiently allege the same degree of

fictionalization or the same degree of defendant's knowledge of

such fictionalization as that which has been found to violate the

statutory right to privacy without running afoul of

constitutional protections of speech (see Spahn v Julian Messner,

Inc., 21 NY2d at 129; see also Binns v Vitagraph Co. of Am., 210

NY at 56).2 Accordingly, defendant's motion to dismiss for

and allegedly false and damaging, use of plaintiffs' photographs

to illustrate newsworthy articles" (Messenger v Gruner + Jahr

Print. & Publ., 94 NY2d at 446). The Court of Appeals has also

offered the guidance that courts, in addressing alleged

violations of the statutory right of privacy, ought to resort to

precedent "directly on point" for the governing rules, which,

here, are cases such as Spahn v Julian Messner, Inc. (21 NY2d 124

[1967], supra) and Binns v Vitagraph Co. of Am. (supra) that

regard biographies (Messenger v Gruner + Jahr Print. & Publ., 94

NY2d at 446).

2 We emphasize that, at this procedural stage, the film is

not before this Court, and "[w]hether an item is newsworthy 

depends solely on [its] content" (Messenger v Gruner + Jahr

Print. & Publ., 94 NY2d at 442 [internal quotation marks and

citation omitted]).
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failure to state a cause of action should have been denied. 

Garry, Lynch, Devine and Mulvey, JJ., concur.

ORDERED that the order is reversed, on the law, with costs,

and motion denied. 

ENTER:

Robert D. Mayberger

Clerk of the Court