In a decision sure to generate sighs of relief from “true-story” producers everywhere, a New York appellate court has granted summary judgment in Porco v. Lifetime Entertainment Services, dismissing plaintiffs’ claims for misappropriation arising from the television docudrama “Romeo Killer: The Chris Porco Story.” 

The docudrama tells the story surrounding the crime, investigation, and prosecution of Christopher Porco, who was ultimately convicted of killing his father and brutally injuring his mother with an axe. Certain events in the film were admittedly fictionalized, as is common to the genre. Under New York’s misappropriation statute, when a film concerns a newsworthy subject, a plaintiff may not bring a misappropriation claim unless he can demonstrate that the use of his name or likeness does not bear a “real relationship” to the subject matter of the film. For example, a film that presented itself as a biopic  of Lady Gaga, but which was entirely fictional, would give Lady Gaga a misappropriation claim. 

The problem in the Porco case was that plaintiffs had pleaded the docudrama was so filled with falsehoods that there was no “real relationship” between the use of Porco’s name and likeness and the admittedly newsworthy subject of his crime, and the lower court had accepted this pleading on its face. Thus, Lifetime faced the risk and expense of having to prove to a jury that plaintiffs were wrong, and that the docudrama was substantially accurate.

The decision of the appellate court, however, now eliminates that risk and helps to give clarity to this muddled area of New York law, which will have national implications given New York’s role as a forum for potential plaintiffs. The court held that its review of the docudrama confirmed that it “presents a broadly accurate depiction of the crime.” More important, the court held that the disclaimer at the beginning of the film, which recounted that it was “based on a true story” but that “some names have been changed, some characters are composites and certain other characters and events have been fictionalized,” served the insulate the docudrama from liability because it “did not mislead viewers into believing that its related depictions of plaintiffs was true and was not, as result, ‘so infected with fiction, dramatization or embellishment’” that it was not newsworthy.

Thus, as long as producers make clear – through disclaimers or otherwise – that a docudrama is “based on a true story,” and do not present fiction as unalloyed fact, the Porco decision provides strong support to protect them from misappropriation claims under New York law.