Holland & Knight - Hot Topics in Media Q&A

Hot Topics in Media and Entertainment

RIGHT OF PUBLICITY: EVOLVING LAW AROUND THE USE OF A PERSON'S NAME OR LIKENESS IN DOCUMENTARIES AND DOCUDRAMAS Q&A with Associate Cynthia Gierhart Holland & Knight on the Rise (HKOTR) provides business development, networking and leadership opportunities for the rising stars in the firm. As part of this initiative, we have launched the Hot Topics Series.

The in-depth interviews allow for our young policy and legal professionals to offer their viewpoints, reflect on their professional experiences and examine relevant issues across the policy and legal spectrums.

This month's Hot Topic features Associate Cynthia "Cindy" Gierhart, a Washington, D.C., litigation attorney who focuses on media, entertainment, trademark and copyright law. In the following Q&A, Ms. Gierhart discusses her experience with right of publicity litigation, a topic of recent debate in light of recent lawsuits filed against the makers of the film Hustlers and the Lifetime movie Romeo Killer: The Chris Porco Story.

Q. What led you to practice media law?

Since I was a child, I wanted to be a writer. I went to school for journalism and worked as a newspaper reporter and copy editor for the first few years after graduating. I then worked in book publishing as a project manager and spent two years as a freelance editor, editing roughly 50 books in that time. But ever since I took a required media law class in college, I felt a pull toward the study of law. After eight years of working in newspapers and book publishing, I decided to go to law school. Practicing media law was a natural progression, combining my passion for journalism with the practice of law. This past year, I was fortunate enough to be able to teach a media law class to journalism undergraduate students at American University – a different university but the same subject that inspired me 20 years ago.

Q. What is the right of publicity?

The right of publicity is essentially your right to control who makes money off your name or image. It is not limited to celebrities – everyone has a right of publicity. State laws vary, but typically the law prohibits use of someone's name or likeness for commercial purposes without the person's consent. Several states extend this protection beyond the life of the individual. In California, for example, the estate of a deceased individual may sue up to 70 years after the person's death for a violation of the person's right of publicity. The law typically protects not only the use of one's name or image but also the use of look-alikes and "sound-alikes."

For example, in September 2019, Ariana Grande sued Forever 21 for using what she argued was a model intended to look and dress like her in an advertising campaign.

Q. Does the right of publicity apply to creative works?

The law prohibits the use of someone's name or likeness for commercial purposes. This means the news media can write stories about you and publish photos or videos of you without your permission, and this does not violate your right of publicity. Typically this "newsworthiness" exception also extends to creative works, but a recent decision in New York state court has caused considerable concern.

In Porco v. Lifetime Entertainment Services (Case No. 2013-0190), convicted killer Christopher Porco sued Lifetime for making a movie about his life, titled Romeo Killer: The Chris Porco Story. Porco was convicted in 2006 for killing his father and nearly killing his mother with an axe. Lifetime moved to dismiss the lawsuit on Copyright © 2020 Holland & Knight LLP All Rights Reserved

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summary judgment, arguing that the film falls under the newsworthiness exception. However, there is an exception to the exception: Where the work is substantially fictionalized, some courts have found that the work is no longer newsworthy but has a primarily commercial purpose. On May 15, 2020, many were surprised when a New York trial court held that Lifetime could not show that the film is not substantially and materially fictitious, citing reasons that included things such as inventing dialogue, moving conversations to different settings, creating composite characters to represent more than one real-life person and titling the movie "Romeo Killer" to "dramatize" him being a ladies’ man. On the other hand, the court also denied Porco's cross-motion for summary judgment, finding that Porco was not able to prove that the film was substantially and materially fictionalized, and ruling that it will be up to the jury to determine what is material.

The decision may have an effect on other films and docudramas. A lawsuit is currently pending in the U.S. District Court for the Southern District of New York over the film Hustlers. In Barbash v. STX Financing LLC (Case No. 20-123), Samantha Barbash sued for the use of her name and likeness – portrayed by Jennifer Lopez – in the 2019 film based on a true story, in which exotic dancers drugged wealthy men at their clubs and used the men's credit cards. It will be interesting to see whether Barbash argues the film is substantially and materially fictionalized – and whether the court will agree.

Q. How do you assist your clients in navigating these issues?

I defend clients against right of publicity lawsuits, conduct prepublication review of draft articles and broadcast and podcast scripts, as well as negotiate publishing, film and podcast agreements. In doing so, I advise clients on potential right of publicity issues, as well as defamation, copyright and newsgathering issues. Outlined below is a recent example of how I’ve assisted clients in this space: In 2018 and 2019, I was part of a Holland & Knight team, along with Partner Christine Walz and Associate Kevin D'Olivo, that represented the filmmakers and distributor of the film Edith + Eddie, an Academy Award-nominated documentary short film, in defense of a right of publicity claim. The film chronicled the relationship between 96-year-old Edith Hill and 95-year-old Eddie Harrison, interracial newlyweds in Virginia who fought to stay together against the wishes of Hill's legal guardian and her daughter. Hill's daughter sued the filmmakers for using the daughter's name and likeness as well as her now-deceased mother's name and likeness, invoking the Virginia statute's post-mortem rights on behalf of her mother.

We were able to secure dismissal of the lawsuit early in the litigation on demurrer (Virginia's motion to dismiss stage), arguing that the film was newsworthy and, thus, that Hill's and her daughter's names and images were not used for advertising or trade purposes. The plaintiffs argued that the film was edited in a way to dramatize and "fictionalize" the events, but the court did not entertain that argument. The plaintiffs filed a petition to appeal the dismissal, but the Virginia Supreme Court denied the petition, finding there was no reversible error.

Contact: Cynthia A. Gierhart Associate Washington, D.C. 202.469.5416 cindy.gierhart@hklaw.com

Information contained in this Q&A is for the general education and knowledge of our readers. It is not designed to be and should not be used as the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

Copyright © 2020 Holland & Knight LLP All Rights Reserved

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