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Don’t Be So Dramatic: True Crime Docudrama Doesn’t Violate Right of Privacy

Addressing the tension between the First Amendment and the right to privacy under New York law, the New York Supreme Court Appellate Division, Third Department, unanimously held that despite being partially fictionalized, a movie based on true events did not violate the privacy rights of the film’s subjects. Porco v. Lifetime Entertainment Services, LLC, Case No. 531681 NY Supr. Ct, Appellate Div. Third Judicial Dept, June 24, 2021) (Fitzgerald, J.)

Christopher Porco was tried and convicted for the murder of his father and attempted murder of his mother in 2011. Lifetime Entertainment created a movie inspired by the events titled, Romeo Killer: The Chris Porco Story. Porco and his mother sued to stop the broadcast, alleging that the film (and related promotional materials) violated their rights of privacy under New York law.

Both parties moved for summary judgment on liability, with Lifetime arguing that the movie did not violate the plaintiffs’ right to privacy “because it depicted newsworthy events to which the use of their names was reasonably related.” The New York Supreme Court denied both motions, finding that questions of fact remained as to whether the depiction of events was “so materially and substantially fictitious as to give rise to liability.” The parties cross-appealed.

New York’s statutory right of privacy (Civil Rights Law §§ 50 and 51) prohibits the unauthorized use of “a living person’s name, portrait or picture . . . for advertising or trade purposes.” On appeal, the Court recognized the tension with the First Amendment, as the right of privacy does not prohibit reporting on “newsworthy events or matters of public interest, even if the reports were produced with profit in mind.” This “newsworthiness exception” is inapplicable, however, in situations where the “newsworthy or public interest aspect . . . is merely incidental to its commercial purpose” or “where the purported aim of the work is to provide biographical information of obvious public interest, but the content is substantially fictionalized.”

Porco argued that the film, a docudrama, fell within the latter category. The New York Supreme Court noted that the events depicted were “indisputably” newsworthy, but Porco contended that the movie was an “invented biography” that had “no purpose at all beyond the actionable one of exploiting their names and likenesses for profits.” The Court held that the film did not violate Porco’s rights of privacy, despite containing some fictionalizations, for two reasons. First, based on a review of materials such as the real police and media interviews with Porco and excerpts from his criminal trial, the Court concluded that the film was “broadly accurate.” Second, the film did not mislead viewers or present itself as wholly truthful, because it included the statement “based on a true story” at the beginning of the film and stated at the end that it was a “dramatization in which some names have been changed, some characters are composites and certain other characters and events have been fictionalized.” Accordingly, the Court reversed the lower court’s denial of Lifetime’s motion for [...]

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Virtual Event | USIPA’s Increasing Diversity in Innovation – Capturing America’s Lost Inventors

McDermott is sponsoring the United States Intellectual Property Alliance’s (USIPA) Increasing Diversity in Innovation conference, which is taking place July 26-29, 2021. This virtual event will offer attendees four half-days of programming from leading experts on how to affect meaningful change in your organization. Partner Ahsan A. Shaikh will be presenting his research and moderating a panel at the conference, on the topic of “Reaching Diverse Inventors Using Brainstorm Techniques.”

Click here for more information and to register.




Thank You to Our Readers

We greatly appreciate our readers over the past year and are pleased to share that we were recently recognized for our intellectual property thought leadership in the 2021 JD Supra Readers’ Choice Awards, which acknowledge top authors and firms for their thought leadership in key topics during all of last year.

Sarah Bro, a regular contributor to IP Update, was recognized as “Top Author” for trademarks. She focuses her practice on trademark prosecution, enforcement and brand portfolio management, as well as licensing, due diligence, copyright, right of publicity and domain name matters. Through our various blogs and thought leadership pieces, we are dedicated to maintaining our position as a leading firm for intellectual property work and keeping clients abreast of significant and relevant topics in the industry.




To Die For – New York Recognizes Publicity Rights of Deceased Performers.

On November 20, 2020, New York Governor Andrew Cuomo signed into law Senate Bill S5959D, a law that is highly important for New York based recording artists, actors, and other celebrities. The new law recognizes post-mortem rights of publicity to protect deceased performers from exploitation of their likeness for 40 years after death.

Specifically, the new law establishes the right of privacy and the right of publicity for both living and deceased individuals. It provides that an individual’s persona is the personal property of the individual and is freely transferable and descendible, meaning the rights can be exercised by the artist’s descendants. The new law provides for the registration with the department of state of such rights of a deceased individual, and that the use of a digital replica for purposes of trade within an expressive work is a violation of law. The legislation also creates a private right of action and new penalties for the publishing of sexually explicit images of individuals and “deep fakes” that are used to falsely depict individuals as engaging in sexual activity, protecting people from revenge porn.

The new law goes into effect on May 31, 2021 and will align New York with 23 other states that have statutory post-mortem rights of publicity.




PTAB Issues Updated Trial Practice Guide: Yearly Updates Expected

On November 20, 2019, the Patent Trial and Appeal Board (PTAB) issued updated guidance for trial procedures in inter partes review (IPR) and post grant review (PGR) proceedings at the US Patent and Trademark Office in the new edition of the Trial Practice Guide.

For easier reading and greater consistency, the new edition incorporates the prior updates released in August 2018 (IP Update, Vol. 21, No. 9) and July 2019 (IP Update, Vol. 22, No.8) into the original August 2012 Practice Guide.

The new edition provides updated guidance on the impact of SAS Institute Inc. v. Iancu on the institution of trial. The new guide also replaces the prior “observations” practice with procedures for a more fulsome sur-reply. In addition, the PTAB has provided more opportunities to contact the PTAB to request an initial conference call, and it has updated the way word counts apply to specific filings. The PTAB has also updated the expected scheduling order for derivation proceedings and the default protective order.




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