Court resurrects a killer’s privacy suit over film

He’s the real-life ax murderer who keeps acting like a terrifying character in a Hollywood slasher movie, popping up repeatedly at inopportune times in scary fashion. Yes, he’s baaack: Christopher Porco, convicted of murdering his father and attempting to murder his mother with an ax while the victims were at home asleep in their bed, has just won from prison a New York court ruling that may send some shivers up the spines of movie makers whose works are rooted in reality.

A New York Court of Appeals judge recently reversed the dismissal of Porco’s suit against Lifetime Networks over claims of statutory privacy violations (a tip of the hat to the Hollywood Reporter for posting may key documents in this case online). Four years ago, he sued Lifetime after it produced a made-for-television film based on the public story of his heinous crime. A furious court battle erupted and threatened to prevent the airing of Lifetime’s Romeo Killer: The Christopher Porco Story, starring Eric McCormack, Matt Barr and Lolita Davidovitch. It didn’t.

But, cue the screechy Psycho violins as the soundtrack, and let’s see how this case, some say, menaces the movie business all over again.

A killer’s upset

Let’s run the tape back to 2013-14, when, as this blog noted, Porco sued Lifetime Networks. A  New York Supreme Court judge then granted him an order against the cable network, halting distribution of Romeo Killer, which Porco had never even seen. The order came down days before the reality-based drama was set to broadcast on Lifetime.

But an appellate court, after an emergency plea, quickly issued a stay on that order, allowing the production to be broadcast.

The case attracted considerable attention because it could have had significant legal effects on the entertainment industry. That’s becuase so many films, television series, and made-for-TV movies are rooted in real life stories. Lifetime had already sunk millions of dollars into Romeo Killer, including for the initial script sale, production, and advertising. The legal battles over Porco’s suit were disconcerting, though, after appeal, his suit was dismissed.

Fictionalization vs. newsworthiness

But like Freddy Krueger, Porco didn’t disappear and instead has risen from the legal dead due to his pro se appeal from prison and a court’s parsing of Empire State law: In New York, the protection of privacy is only limited to “non-consensual commercial appropriations of the name, portrait or picture of a living person.” Lifetime, in its defense, had relied on the newsworthiness of the Porco case: The network had argued that, as a matter of public interest, its publicizing of a true story, reported widely in the news, did not violate the killer’s right of privacy.

But the court rejected this defense,  finding that Lifetime’s production was a substantial fictionalization of the story of the crime, trial, and conviction. If a fictionalization of a biography is substantial enough, this goes can defeat the newsworthiness defense, the court found, directing the case to trial to determine how much of the Porco story was substantial fictionalization and may have violated his privacy.

It’s easy to see why Hollywood could be unsettled by this argument,  just considering some recently released fact-based features (Hidden Figures, Sully, Loving) and ripped-from-the-headlines TV shows (Chicago PD, Chicago Fire, NCIS, Bones). Film makers—and their Entertainment lawyers—always work against the clock, seeking appropriately first to sew up legal rights to real stories and the personalities associated with them, and doing so in timely fashion to bounce off the public’s interest in hot news stories. That said, consider the chilling prospect for screenwriters, who try to “write what they know,” but may now need to consider if their pitches at any point might have had any basis in reality, in even the loosest of interpretations, and therefore might be subject to privacy suits. Could Porco, acting as his own counsel, put a legal knife in the heart of reality-linked films and TV?

It also, hypothetically, might be intriguing to see further down the line with Porco himself, and, were he to see any successful outcomes in his suit with Lifetime, whether he would be subject to New York laws that seek to bar criminals from profiting from their crimes (so-called Son of Sam statutes.) Maybe he shouldn’t plan on buying extra Marlboros during his stint in Dannemora?