A New York appellate court lifted a judge’s ban on Lifetime’s airing or even marketing of a TV movie on Saturday after the convicted killer portrayed in the project filed suit claiming a violation of his right of publicity.
Lifetime’s legal team objected to a decision issued by a New York Supreme Court judge earlier this week that would have prevented the network from showing “Romeo Killer: The Chris Porco Story.” Legal observers predicted that the network would be successful in overturning the decision at the appellate level, given legal First Amendment precedent on “prior restraint” of creative content.
The film stars Matt Barr as Chris Porco, who is in prison after he was convicted of killing his father and severely maiming his mother.
The case is not over. Elizabeth Garry, associate justice for the New York appellate court, set and April 10 hearing on Porco’s effort to obtain an injunction.
Even then, however, some legal observers believe that Lifetime has a strong case. Porco cited a New York publicity rights statute that requires permission from a subject for the use of his or her image for “advertising purposes or the purposes of trade.” On Tuesday, Robert J. Muller, a judge of the Supreme Court of New York, accepted that argument in issuing a temporary restraining order that would have prevented the movie’s showing on Saturday. He said that Lifetime “appears to concede this movie is fictionalized.”
But Lifetime’s legal team said that would essentially allow anyone portrayed in a movie to stop it by claiming that it was fiction. Gary Bostwick, partner in Bostwick & Jassy who is not involved in the case, said that it is one thing to claim defamation and another to try to stop a project before it happens, the latter being a prior restraint that is “contrary to American case law.” California has a publicity rights statute, but there is case law giving First Amendment protection to “expressive works” whether they are factual or fictional and for matters in the public interest.
Along with Kelli Sager and Erwin Chemerinsky, Bostwick was recently on a Los Angeles County Bar Assn. panel called “Stop That Movie!” that delved into the ways that plaintiffs have tried to get around constitutional protections to stop entertainment projects. One of the issues discussed were state judges reading state statutes yet not giving enough credence to federal precedent.
Another matter in the Lifetime case is whether Porco could somehow prove damage to his reputation, given that he was convicted and is serving time in prison.
On a promotional front, the Lifetime case has some similarities to what happened with “American Tragedy,” a 2000 miniseries about the O.J. Simpson trial that Simpson unsuccessfully sought to halt CBS from airing. The network quickly promoted the project as the movie Simpson “doesn’t want you to see.”
In a press release announcing that the judge’s injunction had been lifted, Lifetime called the project the “Lifetime Original Movie Chris Porco doesn’t want you to see.” They also announced that a documentary will air after the movie, called “Beyond the Headlines: The Real Romeo Killer.” Included, Lifetime says, will be an exclusive interview with Porco and his ex-girlfriend. A Lifetime spokesman said the special was originally produced for CBS.