Rapp On This: The truth won’t set him free, but . . .

Rapp On This: The truth won’t set him free, but . . .

Remember Christopher Porco? The Delmar guy who was convicted of ax-murdering his father and the attempted murder/maiming of his mother? He’s cooling his jets in Dannemora, doing 46 to life, but he’s keeping busy chasing around Lifetime Television for its 2013 cable-TV movie The Romeo Killer, which was based on the murder, the investigation into it, and Porco’s trial. Did you see it? No? It sucked! You won’t even get any local ju-ju out of it because it was filmed in Vancouver, for crying out loud.

Porco, who’s representing himself from the hoosegow, is claiming that the film violates his statutory right of privacy pursuant to New York Civil Rights Law Section 51. This law, pretty much the only general privacy law we have in New York, makes it an actionable offense to use someone’s name, portrait, picture or voice for for “advertising purposes, or for the purposes of trade.” There is a carve-out for “reports of newsworthy events or matters of public interest,” so if you’ve done something people are interested in, well, no privacy for you! This law is typically invoked when somebody shows up in an advertisement without a release, or when some ad agency uses a celebrity lookalike or soundalike in a commercial. But occasionally, it’s used other ways.

Like here. Porco is claiming that The Romeo Killer is largely a work of fiction, and because it’s fiction, Lifetime can’t hide behind the newsworthiness exception. Porco brought this suit in 2012, and initially tried to stop The Romeo Killer from airing on TV. A state judge in Plattsburgh sided with him at first, and that ruling was quickly reversed by the Third Department appellate court in Albany, which said that enjoining the movie amounted to an unconstitutional prior restraint of speech and that there was no showing of irreparable harm to the public. (I would have argued that showing a hideous hack-job of a movie amounts to “irreparable harm to the public,” but alas, I wasn’t retained by Mr. Porco.) The court allowed the lawsuit for damages to continue.

So after that, Lifetime moved to dismiss the case, claiming that the movie was “newsworthy,” and the Plattsburgh judge, perhaps smarting from the earlier reversal, threw the case out. Porco appealed to the Third Department, and in a short, sweet, and unanimous ruling penned by my old law school classmate Hon. William McCarthy, the case got revived. (I found it vaguely amusing that the plaintiff was listed as “Christopher Porco, Dannemora, NY.”)

Now, a motion to dismiss is a hard thing to get, it’s based totally on what’s in the complaint, and the standard is that, giving the plaintiff the benefit of every inference and assuming everything in the complaint is true, there can be no possible way the plaintiff can win. Porco alleged that much of the movie was fiction, and referenced a 2012 letter from the Lifetime producer to his mother assuring her that after The Romeo Killer aired, Lifetime would film various family members talking about what happened in a “non-fiction program.” The inference being, of course, that The Romeo Killer was substantially a work of fiction. Oopsie!  

The Times Union oddly referred to the appellate court’s decision as a “minor victory” for Porco, which is nonsense. It’s a huge win for Porco, and, as The Hollywood Reporter noted, “The decision could be troubling for producers of ripped-from-the-headlines TV shows and movies as well as others.” THR also pointed out that The Reporters Committee For Freedom Of The Press had filed an amicus brief in support of Lifetime with the appellate court. This is kind of a big deal.

So what happens now? The case returns to Plattsburgh, and the parties will engage in discovery, where each side can get documents from the other and depose key people. Porco’s gonna have plenty to do with his “free time.” Interestingly there’s a wealth of info in a great 2013 Times Union article “Way Too Much Romeo In Porco Film,” in which arts writer Amy Biancolli and reporter Brendan Lyons, who covered the case, hilariously discuss all the ways the film diverged from reality, from casting a hunky actor to play Porco as some kind of suburban Lothario, with a bunch of boinking going on (including Porco boinking a detective’s daughter!) that apparently never happened, to casting the Will and Grace guy as an amalgam of three different police detectives, to the fact that whoever played Porco’s defense attorney wasn’t nearly as colorful as Porco’s real lawyer, Terry Kindlon. (If you ever get a chance to see Terry in action, do it!) Will these types of inaccuracies be enough to knock out the newsworthiness exception? After all, the movie does feature a guy convicted of ax-murdering his father; it even has Porco’s yellow Jeep famously driving up and down the Thruway the night of the murder. It’s really gonna be a test of how far true-life filmmakers can stretch the truth, which is some they all do to keep a story interesting. And commercial.

Paul Rapp is a spry Berkshire-based entertainment attorney who’d like to see Preet Bahrara appointed special prosecutor over the Rooskie’s boosting the shitgibbon and trying to ruin our country.

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