In the State of New York, Content Creators Do Not Need a Person’s Permission to Write a Story, Make a Movie, or Record a Song About the Person if the Creative Works are not Substantially Fictionalized

            Other people’s lives can be extremely fascinating, whether they are widely known celebrities like Michael Jackson or Judy Garland, or lesser-known persons who become the subject of the latest true-crime re-enactment series on the Investigation Discovery channel or another network. Americans have a voracious appetite for salacious real-life stories. And despite the many protestations and lawsuits that these true-life stories engender from those whose lives are being depicted, these depictions are most often fully protected forms of free speech.

            In New York, only a living person has a property interest in his persona (name, image, and likeness), and he has the exclusive right to monetize it in connection with selling goods or services. A person’s interest in his persona is called a right of publicity. And in New York, such right is governed exclusively by Section 50 and Section 51  of New York’s Civil Rights Law (the “Law”).   Section 50 prohibits using a living person’s name, portrait, or picture for “advertising” or “trade” purposes without such person’s prior written consent. Section 50 provides criminal penalties and section 51 provides a private right of action for damages and injunctive relief.

            Based only on a plain reading of the statute, one might reasonably conclude that writing a book about the life of the neighborhood bodega owner, without his consent, however intriguing it may be, would be a violation of the statute. One might also determine that, whereas writing a book about a local small business owner violates the statute and said owners right of publicity (which is a subset of the right to privacy), writing a book or making a movie about, say, Taylor Swift, would not be in violation because Taylor Swift is a public figure. Neither assumption is entirely accurate according to New York courts’ interpretation of the Law, however, creating ambiguities as to what’s protected, here’s why.

Creative works, a term derived from copyright law, which includes plays, movies, short stories, songs, dances, visual arts, and the like, are protected forms of free speech under the First Amendment of the U.S. Constitution. Accordingly, as between a state statute and the Constitution, the First Amendment will most often prevail.[1]

The reason creative works are found not to violate the Law is that courts have construed the statute as exempting them because they are not “advertising” or “trade.” The case of Gravano v. Take-Two Interactive Software, Inc., 37 N.Y.S.3d 20 (N.Y. App. Div. 2016) clearly illustrates this. Gravano involves a challenge by one-time celebrity Lindsay Lohan to the use of her image in a video game. The court made short shrift of the case in ruling against Lohan. It held that the video game was protected expressive speech and cited Brown v Entertainment Merchants Assn., 564 US 786, 790 [2011]  for the proposition that “(l)ike the protected books, plays, and movies that preceded them, video games communicate ideas” and deserve First Amendment protection.”

However, there is even a limit to the protection afforded creative works or expressive speech under the First Amendment. In New York, the expressive work must not substantially fictionalize the incidents ascribed to the person whose persona is being appropriated, otherwise, the expressive work will not be protected. 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, 221 NE2d 543, 274 NYS2d 877 [1966]vacated 387 US 239, 87 S Ct 1706, 18 L Ed 2d 744 [1967]adhered to on remand and rearg 21 NY2d 124, 233 NE2d 840, 286 NYS2d 832 [1967]appeal dismissed 393 US 1046, 89 S Ct 676, 21 L Ed 2d 600 [1969]) 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.” Id.; see generally Lerman v Flynt Distrib. Co., Inc., 745 F2d 123, 131-132 (2d Cir 1984)

In New York, closely related to the First Amendment, are the newsworthiness and matter of public interest exceptions to the Law. As to what constitutes matters of public interest, the definition is nebulous and broad. It includes political happenings, social trends, news stories, and articles of consumer interest, including developments in the fashion world. Also included are “all types of factual, educational and historical data, or even entertainment and amusement, concerning interesting phases of human activity in general.”[2]On the other hand, matters that are not considered public interest include stories which fall “into the realm of mere gossip and prurient interest,”[3] or are “matters of purely private concern.”[4] In Stephano v News Group Publs., 64 NY2d 174 (1984),  the Court of Appeals ruled against the plaintiff and stated, “It is the content of the article and not the defendant’s motive or primary motive to increase circulation which determines whether it is a newsworthy item…”

One other exception to the Law exists for incidental or de minimis violations, which mostly applies to photographers. The doctrine of incidental relationship holds that a person, whose images are incidentally included in a photograph without her consent, and who is not the main focus of the photo, is also without remedy if the subject of the photo is a matter of public interest or newsworthy.[5] Moreover, if the person is included in a video, and their appearance is brief or de minimis, her appearance will be deemed incidental and no privacy violation will be found.[6] Incidental use will be found if there is close proximity in an  “assessment of the relationship of the references to a particular individual ‘to the main purpose and subject of the [work in issue].’”[7]

Spahn stands for the proposition that you can author a creative work about someone, but you must ensure that the creative work is not a substantial fictionalization of that person’s life, otherwise you subject yourself to statutory liability. The case of Porco v. Lifetime Entm’t Servs., LLC, 47 N.Y.S.3d 769 (N.Y. App. Div. 2017) demonstrates the blurry line a content creator must straddle between substantial fictionalization, dramatic license, and an accurate recount of real-life events; a case whose trial court ruling initially sent off alarm bells in the true crime, docu-series, biopic industry of video and film making. Because courts conclude that if the expressive work is substantially fictionalized, it loses its newsworthiness or public interest value, thereby losing its safe harbor protections under the Law.

But, the Spahn rationale seems to conflict or be inconsistent with the ruling in Gravano. In Gravano, the argument by the content creator wasn’t so much that Lohan was newsworthy, as it was that the video game was an inherently protected form of free speech. And decidedly, it was the free speech argument that prevailed. (“Even if we accept plaintiffs’ contentions that the video game depictions are close enough to be considered representations of the respective plaintiffs, plaintiffs’ claims should be dismissed because this video game does not fall under the statutory definitions of “advertising” or “trade”… This video game’s unique story, characters, dialogue, and environment, combined with the player’s ability to choose how to proceed in the game, render it a work of fiction”)

Porco creates even more ambiguity for content creators. In Porco, the plaintiff, Porco, is imprisoned, convicted for the murder of his father and the attempted murder of his mother. Lifetime Television Network was set to air a docudrama about his life. Porco objected to the film because his mother received a letter from the film’s producer which, based on an extremely favorable reading of the letter in favor of Porco, ostensibly suggested that the producers of the docudrama had fictionalized it, since the letter offered the plaintiff’s mother an opportunity to set the record straight. The appeals court, in reversing the trial court which granted defendant’s motion to dismiss for failure to state a cause of action, ruled that it was plausible for one to conclude that the film was not an accurate account of the record and was merely intended to be a fictionalized portrayal of Porco’s life. The court cited Spahn for the proposition 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.” The Porco case is currently pending, and its eventual outcome will be of great importance to the entertainment industry and New York’s right of publicity jurisprudence.

In sum, right of publicity laws vary across the country. Therefore, content creators should know the laws of each state in which their creative work will be distributed, reproduced, broadcast, or displayed. As a general rule, in New York, creative works that feature persons without their consent, but which are newsworthy, of public interest, or that incidentally appropriate such persons’ persona, will not violate the Law. Still, creators must be mindful not to substantially fictionalize the life of persons who are the subject of such works, or else the works and their creators will end up on the wrong side of the Law.

[1] See, generally Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 563–64 (1977).

[2] Paulsen v Personality Posters (59 Misc 2d 444, 448)

[3] Weiner v Doubleday & Co., 74 NY2d 586, 595; see, Palmisano v Modernismo Publs., 98 AD2d 953, 954Fitzpatrick v Milky Way Prods., 537 F Supp 165, 170).

[4] Dun & Bradstreet v Greenmoss Bldrs., supra, at 759; see also, Cottom v Meredith Corp., 65 AD2d 165, 170Connick v Myers, supra, at 147).

[5] De Gregorio v CBS, Inc., 123 Misc 2d 491 [Sup Ct, NY County 1984].)

[6] Id.

[7] (91 AD2d, at p 260, citing Ladany v Morrow & Co., 465 F Supp 870, 882 [SDNY]; Meeropol v Nizer, 381 F Supp, at p 38.)

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