SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION, THIRD DEPARTMENT

X
CHRISTOPHER PORCO, Plaintiff-Re spondent,
VS.

Clinton County Clerk's Index No. 2013/190

LIFETIME ENTERTAINMENT SERVICES, INC.

Defendant-Appellant.
X

EMERGENCY AFFIRMATION OF MICHAEL J. GRYGIEL

MICHAEL J. GRYGIEL, an attomey admitted to this court, affirms under penalties of

perjury:

1.

I am a shareholder in Greenberg Traurig, LLP, and counsel in this proceeding

to

Defendant-Appellant Lifetime Entertainment Services,

Inc. ("Lifetime"). I submit

this
a

affirmation in support of Lifetime's emergency application to vacate or stay pending appeal

temporary restraining order entered on March 19,2013 (the "March 19 Order"), pursuant to an Amended Order to Show Cause issued on that date by New York State Supreme Court, Clinton County (Robert J. Muller, J.S.C.). A copy of the March 19 Order is annexed hereto as Exhibit A.

2,

The accompanying order to show cause is an emergency because

it seeks to

vacate or stay pursuant to CPLR 5518 an order that otherwise enjoins the national broadcast on

March 23, 2013, of a film about the trial and conviction of Plaintiff-Respondent Christopher Porco. The March 19 Order is a classic prior restraint in violation of the First Amendment to the United States Constitution, arrd Article 1, Section 8 of the New York State Constitution, and
otherwise in violation of

law. Lifetime seeks the accompanying order to show cause

because

absent immediate relief its significant constitutional rights irreparable injury infl icted.

will be irreparably harmed and other

3.

In addition, the injunction against Lifetime was entered before the Court properly

obtained personal jurisdiction over

Lifetime. Plaintiff has yet to

serve his summons and

complaint, copies of which are annexed hereto as Exhibit

B.

Plaintiff s Amended Affidavit,

Memorandum, and Proposed Order to Show Cause were mailed to counsel for Lifetime and
received on February 15,2013. (A copy of plaintiffs application for injunctive relief is attached
as

Exhibit C for reference.) By letter dated March 4,2013, the lower court informed counsel that

Lifetime had until March 11 to respond to plaintiff s motion; in hling its response, Lifetime
noted that it had not yet been served and specif,rcally reserved its objection to the lack of service,

4.

Lifetime has today filed its Notice of Appeal and Pre-Calendar Statement, and

has

served them on Plaintiff-Respondent by f,rrst class mail, postage pre-paid.

A copy of the Notice

as

of Appeal and Pre-Calendar Statement, as filed with Supreme Court are annexed hereto
Exhibit D.

5. I have been unable to notify Plaintiff-Respondent of this request for emergency relief,
or to seek his consent to its entry, because he is currently an inmate at the maximum security
prison at Dannemora, New York. Because Lifetime will suffer irreparable injury if the March 19 Order is not stayed pending appeal, and because the order is a patently unconstitutional prior restraint upon speech, advance notice of this request to Plaintiff-Respondent should be waived
under the exigent circumstances presented.

6. No prior request
Dated: March 20,2013 Albany, NY

has been made for the

relief sought herein.

J
ALB
1676573v1

el

EXHIBIT A

SUPREME COI'RT ONTITE STTE OANEWYORK COIJNTY OS CLINTOT\.

CI{RISTOPTIERPORCO,

Platntlfi
.against-

AIVTENDED OR.DNR TO SHOW CAUSE Indox No. 2013.190

IIETIME ENTERTAINMENT SERV CES, LLC.

DeJndaht,

*-x

fff. {0. 0{-r. rw. $l

Suprorue Cour Clinton

Couoty. '

llon, R,

J,

Mullor, Justioo Presiclirlg

utcld

0r{ofil ro

upon roading tefafaviru{r+tue

momorandum of law, and upon tho summos and comphint herl. *

tll|

uv

of ffbtUtl

2013, rho supporting Mtflld

LET the defordurt orthcir

ottorrys show couso beforo this court at amodontorm, to bo

hsldin

aDd

fortlre0ouutyofClhtonon

/lil

fb,

Yllfl .

.attheClitonCounrySuprernsCourrsrcliriron

I tr+r [tt[ as'cdun-sel c{n be bead:

WIY

137-Margarct Stret, Platbburgfr, New Yok 12901

at q: l_ o'clock iths

a prolimiaary njurotion should uot be grantcd horoin pursuaut to Scctlon 6301 of ttro Civil

Prootico Law aqd Rrilos, enjoiniug defeudal it subsidiaries ad relatcd corporations and their rcspective officors, agcuts, sowant$, emptoycos and ttomcys, and all other porsons in aotve conccrt or participation with theur, from producng, distributing, tolovising, otraring for salo, solioting ofibrs for the purchase of, or

advefising tho movicl "Romoo Killcr: Ths cluistophor florco Story," (the "MOVIB"), or any item n
ooriunotion witJr whicb tho namc of the plaintff Christophcr Porco, or ry part thoreo{ is uscd, and om otharwise exploiting plaitrdffChristopherPoroo's namq personality, or likrcss, orusing sanre for advortising purposcs or purposes of tado during tbo poudeuoy of tbrs aotirr, it ie:

ORDERIDT that pending te hsaig of this motion, tho dofendnt, its subsidiis and related
corporatms herein, thcir officers, agorrt6, scfl/nts cmpecs, and attomeye and all
or pafioipation $'ith thom be and bereby are, enjoined from
pere ons in ativs oonoort,

distibuting, olovisig, oftring for salo, solioitiug

ofers fortho pruchaso o{ or adverdsingthc'MO\E" or any itcm in oonjunction wittr whictrthe name oftfc

* \e llvrnl nct uni,ilail t1ttl, t'lftllffdllr1 i,l 0/f0ll'll0fl 0f c[,flt/lfl T0.Dhy, li|.'t ltda tlltt'h lxtl) Md {1r (lty 0r cMr[r f0/t,0 rllfi 1'lni|ft rlh|d fifiinl ut{d [1[lci \, Ntt,
lt
l;D v1-B f,t,ll 1tt\o') utn<, Aii.iirt'7
rrn

1,

r)f //1 vld 7.lt zi

tlz 6t t'ti{

plaiutiff Chrietopher Porooo cr any part thorco{, io uscd, atd from othsrwiso exploitiqg C}uutopher Poroo's
namq personolity, or likenols, or using sarrie for or oftrado.

nN0iln! l 1r r|tr:d it

ddl't ,1Tch{d nren, fXDIr:RED-llrat.plahtift-Christop}er-l+ler"r-furnirLr-unlc+t*kjrg,lo.lrrlu-tborqr}.irr

e,r hrfi vi Tw

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t+6.rrof-

-$.--:-*onditioncdtluthjstptdler-$+rpe"ifiFi*findlytleronnhdtlatdei+notrrtitletlto*prolimirmr.
inlrrrtior^'wilt rtrgtetlre'de-Lbntlat+llhngor nntl"vrntswlrictrmq bu-sastnhrcdttca*tn*hcrwli

ORDERJD, that sufEcicrt cauee appearing tboroforq lct scrvlco of a copy of this Amended Ordoi to thow Causs anil all papors upon wbioh it is bassd, by delivery to the Now York Seorotary of Stato, in irs
capacity as registod agent for ervcc of procoss for tho dofendan! thus upon the dendan on or befors the

J 1-- Aay of t'l UCDoted:

2013, bo daanred good and $rfficientsoniootbsroof,

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ADDENDI]M
TO AI\4EI\DED gRpDR TO SHOW CAUSE

Irrcscntly eljoui:rg (hereinnlterthn n

(TRO)

a,T'sul e Clu.i

j,201
accordancs with Uniform Rulee for Trial Coufs ded with notice of ths application and the

It i by now well ahgaring for a or dauage wlll rcsrrlt 6301.i se Pantel v Worlonents Clrcle/Arbetter Ring ltranch 1,8],

os prelirninary urles

t p
zg
L A'D?II g'!7

ilp,
ors

"91B [2001]).

FJcre,

hf irt anrl, oonscrqrrent, plaiutiff wll not suffer nnrediate and incparablc injury in rhe 6b"ene of a'lrdo, 'l'ho courtn howcver, ir rrot por*uaclqcl, It has provioru;-beon hclril uder circrnrstlnccs similat to thoae herein, tlat
"[t]o dsny the r{unctioo sougbt would pemrit a clear violation of the civil Righrs and geprive plaintiffof one of the tatutory remedios, thus limitng hin t ttre f,aw

delcndant frst conlends thnt monetary clnnragcs arc ulffcieut to redr.esr arry allegcd

less satisfaotory remedy of a damage suit, Defeudants knew or should ave koru tftat thov wers including plainti.ffas a character, by naure, at thei own rs since 9g:qturr quired his written consont', (Dwgont Colutmbla Broadcasttng Sys, (29 Misc 2d3941396 [Sup Cr, bfy Counry 196l]).

Defendant next contends that the gsuance of a TRO rndor the clrcumstances heein "would set a dangerous precedeut[, as a]nyone who did not want his story recouuted - whethor politioian angry about repotting on his pt or, as here, a convictcd mrrdorer could clain thc

sory was defendant

argumeut

icaton." With that said, howeve

.and,,as-1-nlt, the Court finds this

'[he Court has there'foro gtanted the requestcd TRO pending the rctu6 date of the modon.

Daled: March

11 ,zots
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EXHIBIT B

F[LED
SUPRAME COURT OF THE STATE OF NEW YORK COUNTY OF CLINTON CHRISTOPHER PORCO,

I'1.intffi
-agalnst-

ST/MMONS rndexNo,

/-/

7A

I-IFETIME ENTE RTAINMIINT SERVICES, LLC

Defer,rlanl.

To the aboveramed defbndant: You are hereby sumnroncd to appear in this ction by serving
a

notice of.'aprearancc on plaintiff. rvithin

darys

twenty days after:thc scrvicc ofthis snmmons, exclrLsivc ofthe clay of seruicc, or withinthirty is complcte if the summons is not pcrsonally delivcrccl to you r,vitln the Statc of
Nerr,v

af'tcl servcc
<lf

York

Iu casc

yottr

fhilure to answer, judgcnrent will be takon agains[ you by clefault tbr the rclief dcmanded irr thc conrplaint,
Tl're basis

of'the venrre designatcd is the resiclenco of the ptaintifT, which is Clintou Corrcctional

Facilrty, Din# 06,4.66t16, ,P.0. Box 2001, Daturemora, New York 12929.

Dated: Jarruary 29,2013

(^

x-t%-.--

Cluistopher Porco

Plaintifl prri-te
Clinton Correctioual Facility, #06466tl6 P.O. Box 2001 L)annglrora, NY 12929

FILEE
SIJPREME COURT OF TIJT ST'ATJ] OF NNW YORK COUNTY OF CI,INTON
'ta

FtB 4 ?013
CLINTON COUNTY OLRKS OFFICE

CHRISTOPHER I'ORCO,
PlainrifJ"
-agarnst-

VERI:FIND COIUPLA"INT'
Inclc.x
Cl

No,

O/,*,/

Ll FETINIE EN'r'ERTAINMENT SEIVICES, LL

D<lbnrlanl.

Plaintif{ Christopher Porco, hereby conrplairring of the

def'endaut herein, rspcctlllly alleges as fbllows

FOR A FIRST CAUSE OF CTION

Plaintiff, Christophcr orcr:, is a rcsidonl of the Stote of Ncw Yorlc, Couuty of Clintou,

re.siding

at Cllinton Correctjonal Facility, Din # 06./\'6686, P.0. nox l0tl I , Deutnernora,

NY

2929.

2. That in August 2006, plaintiffr,vas convctod of rnurdcr

and attcurpted rmrrc{er in C)range County

Suprctle Court. Plrrliff absolurtcly rrraintains lris iuroceuce, and is currcntly appoaling his conviction, Thc
criutcs that Icci lo the trirl, ancl the trial itself were subicct to cxtensivc rncclia covcragc.

3,

That rrpon plaintiff"s ilfomrrton and belief, at ali timcs hcrcinaflcr lncntiouoc{
rvas and is a limitcd

l"he def'cnda.nt, lar,vs

Lifetinlc Entsrtairunent Scrviccs, LLC,

liability compriny organizecl ulrdcr tlre

of tlle

State of New York, and rnaintains pLinc\ral oti ce at 23 5 45rl' Strect, New York, Nclv Yor[< I 00 I 7 .

4,

'I'hat upou piarintiffs infolnation and hclief" al. illl tinres hereinLftcr meutioned thc defeudarrt,

Lifetin'rc Entertai.rneni SeLvices, LLC, itsclf andthroughits subsidiaries ancl relted cotporations lvas andnow

is engagcd in thc business of rnultinediaproduction and operations, and is solc orvncr

Lifctin-Le Tolevrsiou Network, locatcd zt 309 West.49(r'Strcet, New

urcl

opcrirtor of the

York I0019.

That upon plainti.ff.'s irrfonnatiou aud belief, at

rll times

hcreinallcr nrentioncd, thc Lif'etime

T'elevision Nstwork is carriecl by, and broadcast on, allrnajor cable and satellitc providcrs inthe State of Ncw

York, thcrcby ieriving substautial reveluc iu thc State of Ncw York,

6. That on or about Decemler

l, 2012 plairrtiff

learned that defendarrt, Lifetime Bntcrturent

Services, LLC, through its r.vholly owned subsidi:rry Lifetirne Television Network, is engagecl iu production
ancl

rluned widestrlreacl telecasting within this state a.nd elsewhere of a "rnode fbr T.V," nrovie entitled:

"l{omeo Kller: The Chrstopher Porco Story." (Thc "MOVIE") (see, Exhibjts "4"-"8").

7. Thatthe"MOVIE"isaknor,virlgaudsubsturtiallyfictio:ralizedaccontrt,

"lrrspircdbyatruestory,"

(Exhibit "C"), about plairtifT and lhe cvents that led to his incarceratiou, lJpcln iufcrmrartion rLrd bclicf.
defendant is utiliziug a screeuplay, and has retainecl the scrvices of octors to porray plairrt"if aud otlters, ancl

m so doing appropriates plaintiff s name, likencss, nnd peirsonrlity for prrrposes of pLofit.

'['hat appearance ofplaintiff

tunre ad likcn-css inthc "MOVIE" and relatcd prornotioual tnateral

and advcrtisements curscs plairrtiff to be identified in connection with defcndarrt's contmcrcial p::oductiol.

9. Tllali plarntiff
in defbrdant's "MOVIE"

has not givcn conscnl to, or in any way auflrorizcd the use
und

of

his -nzwrc and lilccness

lelated material,

10, 'Ihat defendant took plaintrfl"s

nan.Lc and

lkcuess, and is rlrurning to use thcnr in thc "MOVIE"

lvithotrl plairiffl s conseril and authoriz"rtion.

It

Ttrat on Dcccmbcr 20, 2012 plaintifi caused a demand in writing to be made nporr the Vice

Presiclsnt of Produstion at Lifbtime Tclevision Network, with a copy to dcfendaurX, (Exhibit "F"), to ccase and

dsslstirthe afbremetrhionedunauthorizcd appropriation of planrtiff

nune and likeness f:rpurposes ofprofit.

12. Tlu:I on Jauuary '22,2013 plalrrtiff reccivccl a rcspcrnse from r:ounsel

counsel clrjLuedthrtthe

fcrr

the clcfbudaul, whcreirr

"MOVIE,"

despito ils rcliance on inragincd clialogue and evetrts, rudthe use of a 'script

nnd actors, is "editorial," and is not being made for commercial purposes, Brscd on this logic, couutscl opined

that tlie "MOVIE" does not fall within thc purview of the Civil Rights l.aw, which prohibits cournrcrcial appropriations of a persclu's tamo or likeness. (Exhibit "G")

13.

The usc by defenclant of plairrtiff"s narne, likeness, alrd porsonality for pnrposcs of tradc,

odvertisiug and comrnercial benetrt, was withoutthe conscnt, writtcn or oral, of plairrtiffor ulyoe authorizsd to givc surch consct, was entirely unauthorized, and constitutes a violafion of socticns 50 and Rights Lar,v of the Stats of New York,

5l

of the Civil

14, Defendaut has violated sections 50 ancl5I of the Civil fuglrts Law of the Statc of New York
knowrgly, r.villfrlly, and iri bad faith.

15. By reason of the forcgoirrg aud pursuaut to section 51 oftlie Civil Riglts Law of the State of New
il York, plaintiff denrands that defcndant bc enioined fi'om :my fiirthcr rmarrthorizcd production. exhibiticn,

distribution, or otber use or exploitation oftho "MOVIE", and of any other related tnaterial or advcrtisertrcnts
containing plaintiff s ntrnre, likertess, or personality.

WIIEREFORE, the plaintiff demands,iudgemetrt agaiust the defondant for:

defendant, ifs subsidiaries ulcl relatcd corporartions and thcir

1, A permanerf iqjurtctior njoining

tJrc

respeclivc officers, agcnts, servants, enrployecs, and attomeys, aud ail other pcrsons itr colrcerl or participatton

with tlrenr, from producing, dis[rjbuting, televisiug, offering fbr salc, soliciting oflbrs tbr the purchase of, or

aclvcrtrsingthe"MOVIE"oranyotheritcrninconjuuctionwiththenamcofplaiutiffCbristophet

Porco,orany

partthcreof, is used, and from other-wise cxploingplaiutiff Christophcr Porco's lttnle, persorrality or likencss,
or nsing sune for advcrtising plrrposes or for purposes of trerde;

2.

Sqch other iurd further relief as the Corrrl may dcent just ancl propcr undor all the ciLcutnstartces,

ncluding, but not linrited to,

plaintiffs

costs and disburscments in tliis action,

Drtcd:,lanunry 29, 2013

Porco

Plaintif, )rl-,t'e Clinl.on Correctional F'acility

P,0, Box 2001

Dannemora,

NY

12929

VERIFTCATION

STATE OF NEWYORK ) COUNTY OF CLINTON ) ss: TOWN OF DANNEMORA) CHRISTOPHER PORCO, being duly sworn, deposes and says that ho is the plaintiff.inthe within
action; that he has read the foregoing complaint arrd knows the contents thereof; that the satne is true to his
knowledge or int'ormation and belief; that to those rnatters alleged on infonnation ancl belief, he believcs them

to bc tnre,

Clrristopher Porc<r

Plahtifl pro-se

2a

SWORN TO BEFORE ME ON THIS

DAY

(-)

20t3

NOTARY

t'l

EXHIBIT C

SUPREME COT'RT OF THE STATE OF NE\ry YORK COUN1'Y O}'CLINT'ON

__*-_-Y CHRISTOPHER PORCO, Plaintif, AMENDED AFFTDAVTT

-againstIndex No. 2013-190

LIFETIME ENTERTAINMENT SERVICES, LLC.

Defenclanl.

STATE OF NEW YORK ) COUNTY OF CLINTON ) TOWN OF DANNEMORA)

ssr

Christopher Porco, being duly sworn deposes and says;

1. I

aur the

plaintiffin the above-entitled action. I anr personally farniliar with all the facts and

crcumstances hereinaft er stated.

2. I anmaking this affidavit in support of a prelirninary inunction ald

temporary restraining order

enjoirng defbndant, its subsidiaries and related coqrorations and their respective officers, agents servants,
etnployees and attorneys, and all other persons in active concert or participation with them, from producing,

distributnrg, televising, offerhrg for sale, soliciting offirs for the pur^chase of, or advertising the "MOVlEl' or
any othel itcm in conjunction with which the name of the plaintiffChristopher Porco, or any part thereof, is
used, and from otherwise exploitingplaintiff Christopher Porco's name, personalily, orlikeness, ornsirrg sarne

for advertising purposos or purposes of trade while this motion is pending and during the pendency of this
action.

3. This reliefis sought by application for an order to slrow cause rather than

by notice ofurotion

because of the urgent need for prompt protection of niy riglrts under Civil Rights Law Section

5l

and in order

to prevent irreparable irlury upon violation thereto. Upon infonnation and belief defendar plans to televise
the "MOVIE" on March 23"r, while this action is pending. (Exhibit

"H")

4.
this CoLut,

This arnended nrotion replaces,the previous application for

rs

prelirninary injunction submitted to

a

I have leamed that the "MOVIE" is scheduled to air on March 23"l, (Exlibit "I{") and thns

temporary restraining order is ncccssary to protoct n:y rigl'rts while this motion is pendrng, in the hopes the

m,emorallclum of law annexed hereto.

8.

On tis day I am sending a copy of this motion, and all papers upon which this action is based, to

the attorney for the defendant in accordance with unifonn Rule 202.7(f).

9. I pray therefore that the Order to Show Cause in the fonn prefixsd hereto be signed, and that upotr
the returu date of said order to show cause the applications thereby brought on for hearing be granted.

Dated:February 12,2013

Plainttff, pro-se

THIS

Qualified in Clinton Commission

/!

EXIIIBIT

664))

Lifetime To Do Chris Porco Movie Wth Matt Barr, Eric McCormacl Davidovich
By I{ELLIE AtREt'lA rrloay

rys:

Homw , 12 @ l:28pm [,sr Erlc llccormucl Lifetime, Romeo Killer: The Chris Porco Story

EXCLUSIVE: Lifetlme is turning another infamous real-life crime story into a TV movie with Rorneo Killer: The Chris Porco Story. Matt Barr, Eric McCormack and Lolita Davidovich star in the project, inspired by the true story of Christopher Porco, wo was convicted of kilfing his father and attempting to murder his mother. Written by Edithe Swensen and to be drected by Norma Bailey; Romeo
K//er centers on beloved, handsome college student Chris Porco (Be

girl's dream in the small town of Delmar, NY- Porco was accused of hls father and disfguring his mother, Joan (Davidovich), in a savage made all the more shocking when a local police detective (Mccon mother identified Chris as her attacker. Also cast in the movie ls En (Anowl, wo plays Lauren Phillps, a young love interest of the accu maintained his innocence. The lllm is executlve produced by Steve Solomos, Harvey Kahn, Michael Jat
Films and llene Kahn Power of Kahn-Powers Pictures. This marks Perception star McOormack's return to Lifetime where he toplined another ripped-from-the hei ls Clerk Rockefeller? lt also brings Barr back to A+E Networks after his breakout role n the blockbustel Hatfields & McCoys. Qorco's story has been extensively covered on TV including a one-hour documr Hours Mystery and an pisode of the truTVs Forensic F/es. Additionally, a 2009 episode of CBS' CS, featured an attack similar to the one Porco was convioted of. Gct Dedlinc ncw and lcrt
Email Arklress..,

FREE

to your inbor...

'{ I-ouinfomdon i sfe mdmn.

This adic tvas pinted from lttp://www.deadIoe.coEl20l2/11/lifetime-todo+hrls-porco-nnvie-witlnstt-ban+lc-mccolnnck-h

Rlated: Prmetine Emmy

Season

5|

Season

I I

Episode Gude

Desperate Hour

Search

rl

1112/2013 9:08 PM

E,XHIBIT

66

))

Deadline Hollywood: Porco murder movie planned

SfF roporl
Udsod 7: f 3 E

n fimdy, OFr

S, 2D'12

The story of onc of the Capital Region's mosl noloriorrc crimes nppnrrntly will be oming to ltre smll ssrn as t mnde.for-television movle, Dedlinc Mtt Barrin fetime networkfllck about him killiug his Hollywood reported Friday that couvicted mutdercrChristopbcr Pon:o will be nrtad

father aod disfiguring his mother i ar ax flttsck

Porco was ed aud couvicted of beating hs parents with an ax as thcyslept in te bcdmom of ther srurbon Delmar home. Joan and Peter Porto, who died om his iljuries, were found blutlgeonetl on Nov. 15, zoo4, setting in motlo an inlensive zr-month investigation and the most widely followed nrudercase on econil ln tbis region.
Pomo, who public rleclaeil bis inocence at bis zoo6 seutcuciug, io serving 5o yeare lo Iife in slate pison.

the flm's reported title

is 'Romeo

Klllcn Tte Chris

Porco Stor/ ond

it 'centers o beloved, haoilsome

college studeut Chris Porco (Barr), wbo was every

gitt's drem in the small towu of Delmar,"

According Deadine Hollywood, the scrcenplayfor the novie was witten by Edithe Swensen and it will b alictealby Norma Bailey,

Iso starriug will be Eric M{ormack as o polce detcctiv and Llita }vjdovich as Joan ?orco. lte report does uol neution atr air dale for te rovie uor whethertle cet indudes a chamcter inspired by tlefense atlomeyTcrence L Kindlon.
corDmet o thls story at http://blog.timesunion.com/cime

Staffreport

t2

lll2l20l3 9:01PM

Lawbeat: Porco movie takes liberties with characters

By Robert Gavln

PublisH 4:38 pm, Tuesday, Decenber 4,2012

So the

Christopher Porco

story is headed for the small screen. Is what actually happened

headed there too?

in zoo6 of the Nov. 15, 2oo4, ax killing of his father Peter and near-fatal maiming of his mother, Joan It is arguably the most high-profile murder case in the history of Albany County.
Porco, notv 29, was convicted

Filming on "Romeo Killer: The Chris Porco Story" began last week in Vancouver, British Columbia. Based on an ear description of the project, some people familiar with the murder case might be scratching their heads about the upcoming Lifetime network flidc
A promo put out by Lifetime described Porco, played by actor Matt Bary as a 'beloved, handsome college student ... who was everygirl's dream in the small town of Delmar, New York." The convicted killer's mother will be played by actress Lolita Davidovich while Eric McCormack (former star of 'Will and Grace") will play a local police detective who sees
Porco's mother nod "yes" when asked if her son attacked her.
Some of the main players say, exaggerated.

in the achral

case were

not mentioned; others seem to be, shall we

"I definitelywouldn't descbe (Porco) familiar with the Porco case.

as a Romeo," said one

law enforcement official very

While Porco had some female admirers at his trial and a girlfriend at one point, placing major girlfiend character in the film could be seen as a stretch. Actress Emily Bett Rickards will play a Porco girlfriend.
McCormack's detective is clearlybased on retired Bethlehem sleuth

Christopher Bowdish,

who now worlis for the U.S. Marshals service and has grayer hair and at least 10 years on McCormack.
When asked about the fihn possibly taking liberties, Lifetime spokeswoman Gina Nocero replied, 'Well, we say inspired by the true story."

It's unclear whether a character will be directly based on Terrlr Kindlon, the Albany lawyer, who with his wife, Laurie Shanks, defnded Porco.

"f can't imagine

a Lifetime drama being made about the intricacies of a motion for a change

of venue," said Kindlon, who was OK with the casting "as long as it's not Pee-wee Herman."

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8:54

PM

Kindlon also turned serious.

"This event, this tragedy, in one sense it's Shakespearian. It really is a fascinating story so it's easy to understand why someone would want to make a movie," Kindlon said. "My fear is

it

is going to open a lot of old wounds. That's just unfortunate. Obviously the story is in the

public domain, and there's nothing we cn do about it." District Attorney David Soares' offce gave a similar comment, saying: '"While we undestand the reasons for the media attention and interest in the facts surrounding this clse, our main objectivehas always been holding this individual accountable for these devastating crimes. We feel justice has been served in this case and remain confident that Mr. Porco belongs in prison for the rest of his life."

Outsde influences kept outside

To prevent outside influences from affecting

tle r-member jury deciding the Troy

absentee

ballot-fraud trial, jurors have been kept from the halls and escorted to other building exits.
On Nov. r4, the second day of jury selection in the trial of Democratic Elections Commissioner Edward McDonough, former City Councilman Michael LoPorto showed up and talked to some people inside a courtroom filled with hundreds of potential jurors. LoPorto, a gregarious restaurateur with a very noticeable voice, was acquitted of all possession of forged instrument charges against him at trial in July and is now very outspoken in his dislike for Special Prosecutor TFey
As a result, LoPorto's presenoe in the courthouse

Smith

within earshot ofjurors coming and going in the hallways - has apparentlybeen the topic a conferences between a woried Smith, McDonough's attorney Brian Premo and Judge George Pulver Jr

While it appears LoPorto has not been banned from the courthouse, some measures put in place became apparent one day last week. Court officers at the front desk called the couhoom when LoPorto came into the building. While l,oPorto stood talking to reporters outside the courtroom door, the blind in the window of the door was drawn and jurors were
escorted from the building through a back entrance.

LoPorto said he was "surprised" bythe attention, but he has chosen not to enter the courtroom.
The jury is being protected inside the curtroom as well. Both Smith and Premo have been

very animated during testytestimony, with Premo at times smiling broadly and shaking his head looking straight at jurors when he hears what he considers iff prosecution testimony.

But on Mony a chucHe was heard during Smith's redirect of former City ClerkWilliam Mclnerrrey, a key prosecution witness. Smith objected, and the defense was chastised by Pulver.

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ilW2013 8:54 PM

The issue of undue jury influence was one of the issues of an Appellate Division decision in Rensselaer County in the 2oo2 rape trial of former Washington County tor,vn police chief

Thomas Levandowski.
The state Supreme Court Appellate Oivisiothrew out 38 of 43 counts and a So-year prison term against lvandowski for improper trial tactics by former District Attorney Patricia

DeAngelis, who prosecuted tle

The justices found

case.

it improper that family members and friends of the victim as well as employees of the district attorney's office had seated themselves up frontby the jurywearing

ribbons of support during summations. Bob Gardinier contributed.rgavin@timesunion.com. SL8-494-24o3 . @RobertGavinTU

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EXTIIBIT

66D))

December

ll

Lifetime movie ortray Delmar murder and ensuing trial r.l: *'P:|: lt .:* ::.?!.
By MARCY VELTE

Porco tale headed to small, screen to

memory of the
professed her
even iough indicated

and

made the attad<.

later the basis for process

nod was
team.

he infamous Christopher :o murder story will soon

orh-ayed tlrrough a Ufetime

I" prl

ision movie. he network has annound

novie qn:ll be "^lled'Romeo rr: The Christopher Porco

States a petition to conviction.

the United denied the mutder

was20 at

Heisnow
servingS0years

y" and will focus on the nar native and University

ochester student who was
icted of h1ling his fafher and npting to kin his motherwith r in 2004.

played by

fetime spokeswoman Gina

ro said the movie ldl show ftom rht of tre murder all re up t}rough the tuial, bu! d some details may notti:

accurate.

Ve sayit's inspired by r," shesaid. .

aFue At th point,.
,a f,f0vre

Ftephst*

hough Porco still maintains

nnocence, he was found

inArigust of 2010 of harring

lered his fathe Pete and

r$irg to murder his mothe, , as they slept inside their Ler Brockley Street home. ncident is presumed to have . over forged cosignarres sfudent loan and car loan Christopher Porco took out ;ut his parents' knowledge'an Porco survived the Nov. ;004, attac but was badly ies. She later claimed no

Porco's

l.*yr,

Terrence
been

IGndlon, said noione from the network has him dr nyone involved the cise about fre filn

network will
Iike

docrtmgts 1t
story.

record court
crse

"Atthis point,
a li[e sentence

rougbtto be re inspirafion of a
2009 CSI

isode.

portzy.

,r
_ ,._

'

2013,

The film is schefd t eir in butan exact ilate hasyetto

"We recognize-the

reasons bereleased.

E,

IBIT

668))

Porco m urder cse holds public in thrall

By Robel Ge!

Upd.bd 7:t2

0,

Frlday,

Mtf,r m

2012

ALB.ANY

The Chrietopher lorco nruder case will attact attcntion in zor3

-just

not the way his lawyers had hopcd.

The convicted ax murdererfrom Delnrarlost his nal appas for a nerv trial ths year, brrt gained the interest of Lifatime television nctwork. It will air

lnode-for''IV move inspircd by the former ollege student who killed l)is fathe, Peter, and maimed his mothcr, Joan, as they slept at thelr 3 Bmcklry Drive home on Nov. t5, zoo4.

It is aryuablythe mot notoious crime in thc Capital Rcgion's history. the rejection of his appal bytle top cout in Americ was chosen by readcm who voted it on timesunion,com as one of the Capital Region's top ro storis for eorz.
Porco, now29,

ffi6

convicted at

t 2oo trial that

was mordto Orange Countybecause of beavypretrial publicty. His fatherws court clerk

toAnthonyv.

Cadona, pesidingjustice of the Appellate Dvision ofstatc Suprcme Court for the

third Department,

Christopher Porco, convicted ofsecond-degrc murderand attempted second-degree murder, is serving a prison scntence of46 years to life at Clnton Correctional Facilily, His laryer, Terence L, Kindlon, who with his wlfe, Iurie Shanks, represented Porco during the trial, hoped tlat the U.S. Supreme Cout would hear lhe appeal. Kinrllon said Porro's rights were violated when Omnge CountyJudge Jefftey Berry, who pruided ovet the trial, llowedAlbany CounS pmsccqtors to elicit testimony that
a

gravely injured Joan Poc identified her son as her attac.kec

When asked by Bethlehem Detective Christopher Bowrlish if heryounger son had hiedto kill herwith an ax, Joan Pom, a srmh t}erapist, nodded "yes.'She later saitl sbe lost hermemory of the ner-deat exchange with the detective who questioned heras pararnedie worked to save her life, Kindlon argued tt Bnce Joan Pon could not resll Bowdish's questioning, the ddeose couldn't effedively cross-examine her. He sad Porco had a constitutional right to mnftont the witsress who mqde t}re acqrsation and witolt having that opporhmty, thejudge should not have allorvetl thc testimony,

In esrlypril,

the Supreme Court denied Kindlon's petition, whch asked it to re.examne the actions of a tnal court. Kindlon filed a second

writ

of habes

corpus appea with

te high

court asking it to consider whetherihe conviction was a violation offederal law and, a6

result, should be overtuned.

Once again, he was rejected. That came after the stte Court

ofpeals, tle

top cou in New York, unanimouly found the evidence agaihst Poco to be

'bverwhelming" decision making,

and that any enorby Berry in ollowing testimony rbout the exchtngbetween Josn Potm and the detective was "harmless' to thejury's

Wth the Supreme

Court'e decision, Poco had en<hausted his avenues of appoal,

Prosecutom saal PoNo, iD debt ahd flunking orrt ofdlege, lied to his parents and userl his fathefs name to sec,retly obtain loans forschanl and a Jeep, They stid Porco drve home om college in the middle ofhe night and staged.a burglarybyslicing r ecreen, then cut a phone line and smaslted the panel of an

alarn thst he disbled with

a code

loown onlyby his family.

The pmsecutore suggested Porto worc pmtective medical dothng um a vetcrinaian's offics where he workerl

prosccution witness was Poco in six hours,

then attacked his parente, The final neigbbor who testified seeing Porul's yellow Jeep in his parents' driveway t}e night of the attack On ,{ug. ro, 2006, jruors convided

Lifetirne sa5r it plans to show'Romeo Killec fhe Chris Porco Sto/ sometime in

ao$.

"This event, thie tragedy, in one sense it's Shakespearian. It rcally i8 a fscinating story, so it's easy to undestund why someone would wdnt to ruake a movie," Kinillon told the Tfmes Union 'My fear is it is going to open s lot of old wounds. That's juet rmfotunate. Obvlously tbe storyis in the public domain, and
there'e notbing we can do about rgavin@timesuDon.com

iL"

. SirS-434-24oJ . @RobertcvinTU

Top storles of2or2

Thi

is another ln a series of the top stori of theycar us

cbmn

by Times Union eaders,

f,1

)11212013 8:50 PM

E,

,
D

IT

66))

Clrristopher Porco, H06 46686 Clintor Correctioual Facility

P.O. Box 2001

Dannemora, New

York

12929 December 20,2012

Ms. Julie Sterl Vice President of Production Lifetime Television Network

309 West 49'h Street New York, New York 10019

CEASE & DESIST

Dear Ms. Stem:

It has come to my attention that your network is producing and planning to televise a movie erttitled, "The Romeo Killer: The Christopher Porco Story," This movie is ostensibly about my family and me, and the events that led to my incarceration.
Using my name and likeness for the purposes of trade or advertising in 'the context of a fictionalized drama, without my express written consent, unequivocally runs afoul of New York Civil Rights Law section 50. As I have not, and will not be giving my consent to use my name for this project, I demand that you immediately take the following action:

Cease all production on ary project that uses my nalne or

likeness

Remove rny nalne and likeness from any advertising or promotional material Give me written assurance that the above actions have been completed, and that no effort will be made in the future to use my nalne or likeness for any unauthorized project at your network

If you refuse to desist in violating my statutory right to privacy, or do not respond to this letter in a timely fashion, I will file suit pursuant to New York Civil Rights Law section 51, and will seek
injunctive and monetary relief to prevent further assaults on my rights. I look forward to your reply. Sincerely,

Christopher Porco
cc'.

Nancy Debuc President and General Manager Lifetime Entefainment Services, LLC 235 45th Street New York, New York 10017 John R. Polster, Esq. Attomey for Joan Porco ' 224 State Street Schenectady, New York 12305

EXI{IBIT

tre
January 17,2013

TEVINE SULTIVAN KOCH &SCHULZ, LIP

321 West 44th Street Suite 1OOO New York, NY 10036
(212) 850-6rOO I Phone (212) 850-6299 | Fax

David Schulz (212) 850-6103 dschulz@lskslaw.com

By U.S. Mail
Christopher Porco #06A6686 Clinton Correctional Facility PO Box 2001
Damremora,

NY

12929

Re:

"The Romeo

Killer:

The Christopher Porco

Story"

Dear Mr. Porco: This firm represents Lifetime Television Network ("Lifetime"). I write in response to your letter dated December20,2072, di.r:ected to Julie Stem, Vice President of Production at Lifetime, concerning the television film "The Romeo Killer: The Christopher Porco Story" (the "film"). You claim that the use of your name and likeness in the film violates Section 50 of the New Yok Civil Rights Law, and dqmand that Lifetime cease all production on the film. Lifetime respectfully rejects your reuest. The use of your name. and likeness in the film will not violate Sections 50 or 11 of the CivilRights I.aYr,r or any other of your rights'

Civil Rights Law Sections 50 and 51 apply only to the use of a person's name or likeness in a "purely commercial setting." Aningtonv, N,Y, Times Co.,55 N.Y.2d 433,442 (1952). New York's highest court repeatedly has instructed that this provision "is to be nanowly construed and 'strictly limited to nonconsensual commercial appropriations of the name, portrait or picture of a living person."' Messenger v, Gruner + Jahr Printing & Publ'g,94 N.Y.2d 436, 441(2000) (emphasis added) (citation omitted). Editorial content on a matter of public interest, such as the television filrn here, does not constitute a "commercial" use as a matter of law. Messenger,94 N,Y.2d at 441.
Please be advised that

The fact that a publication is produced for profit does not make the use of a person's name or likeness "commercial." The Court of Appeals underscored this point in Stepano v.

News Group Publ'ns, Inc.,64 N,Y.2d 174,184-85 (1984):

Section 50, which you reference in your letter, provides only for criminal sanctions, and does not create a civil claim. ,See N.Y. Civ. Rights Law $ 50 ("A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.").
Washlngton
New

York

Philadelphla

Denver

i LEVINE SUTTIVAN : KOCH & SCHULZ, LLP Christopher Porco fanuary L7,20L3 Page2
The fact that the defendant may have fpublished the rticle at issue] solely or primarily to increase the circulation of its magazine and therefore its profits, as the Appellate Division suggested, does not mean that the defendant has used the plaintiffs picture for trade purposes within the meaning of the statute. Indeed, most publications seek to increase their circulation and also their profits.
See qlso, e.g., Arrington, 55 N.Y.2d at 440 (Section 51 not violated by an editorial use "carried oh for a profit" or "for the very purpose of encouraging sales of the publications"); Gaeta v.

Home Box Office,645 N.Y,S.2d707,710 (Civ. Ct. N.Y. Co. 1996) (same). See also Best v. A&E Television Networl<s, et al., 20ll WL 832234 Of.D. nl. 2011) (dismissing right of publicity claim and holding that status of television sho\ry "4s an entertainment program, as opposed to a prue news broadcast, does not alter the First Amendment analysis).

Nor does the fact that the film may ultimately be accompanied by advertising when it is presented transforn the editorial content of the film into a commercial use for purposes of Section 50 and 51. See, e.g., Gautier v Pro-Football,Inc,,304 N.Y.354 (1952) (Section 5l not violated by sponsorship of a television program unless plaintiff s name or pichire is corurected to a commerci al); Delan v. CBS, Inc., 9l A.D.2d 255 (1983) (fact that a telecast is commercially . sponsored does not make it "for advertising purposes" absent a specific connection between the performance and the commercial). Your rights under Sections 50 and 5l will in no way be \ violated by the production, distribution or showing of Lifetime's film. Lifetime thus declines your request to cease all production on the film.
Please note that this letter is not a complete statement of Lifetime's position, nor a waiver any of its rights, remedies, urd/or defenses, which are expressly reserved.

of

A,

IBIT

))

2"^

rv'ovt' le a-. far\h 3 4- -al3 LtYe>ln rttt'a 4o s 'u)q.i< )"1"'o'' k;llngs Bethlehem _- Lifetime television network has released the ai date of its small screen
movie about the Christopher Porco mruder case.

{The network hs announced the movie, called "Romeo KiIIer: The Christopher Poco Story," will premier on Saturdey, March 23 at8 p.m. The movie will focus on the Detmar native and University of Rochester student who was convicted of killing his father and attempting to kill his mother with an ax in 2004.
Acording to tbe networlq the movie will sbowthe night of the murder all the way up through the ial, but added some details may not be totally accurate. The credits will state the tle is "inspired by aue story."

Production of the movie began in late 2012 tn Vancouver, according to a Lifetime spokeswoman. Porco vill be played by Matt Barr, who was most recently in the History Channel miniseries "Hatflrelds and McCoys." Erik McCormick from "Will and Grace" will play Bethlehem police detective Joe Sullivan and actress Lolita Davidovich will play Joan Porco-

fThough Porco still maintains his innocence, he was found guilty in August of 2010 of having murdered his father, Peter, and atempting to mruder his mother, Joan, as they slept inside thei former Brockley Street home. The incident is presumed to have
beeir over forged co-signatures on a student loan and car loan that Christopher Porco took out without his parents' knowledge.
attak, but was badly injuries. She later claimed no memory of the incident and professed her son's innocnce, oven though police claimed she indicated with a nod her son hd made the attack. That nod was later the Joan survived the

Nov. 15,2004,

basis for a long appeals process by Porco's legal team. In April of 20l2,the United States Suprerne Cort denied a petition to rsview the muder conviction.

Porco is now 29, but was 20 at the time ofthe murder. He is now serving 50 years in prison.
The

film is set to portray Porco as a "beloved, handsome qlgc student .,. who was every girl's dream in the small torm of Delma, New York."

#Lifetime Network released the first still fromthe movie on its press website, which depists Bar @or.co) and McCormick (Detective Sullivan) sitting across from each other at a table, in wllt appears to be a police station. ' #The movie's dcscriptfon says prosecutors believed Potco to be na devious and curning sociopath" while "many in the town of Delmar firmly believe the jury wrongfully convicted an innocent young maI." View The Spotlight's previous story aborf the movie here.

+,t|,\Jtf

.r,

wr

SI,]PRE\,IE COIJRT OF THE STATE OF NEW YORK

COUNTY OF'CLIN]'ON
----------------*--x

CHRISTOPHER PORCO,
P.ainti.ff,

-against-

LIFETIME ENTERTAINMENT SERVICES, LLC.

Defbndant.

AMENDED MEMORANDUM OFLAW IN SUPPORT OF A MOTION FOR A PRELIMINARY INJUNCTION WITH TEMPORARY RESTRAINING ORDER hrdcx No.20l3-190

New York state does not recognize a common law right of privacy. Instead, an individual's riglrt to

privacyinNewYorkiscodifieclinSections50and5loftheCivilRightsLaw. Scction5lprovidesthal"la]ny
person r,vhose name,

portrail piclure or voice is used within this state for advertsing pruposes or for the

purposes of tracle without... written consent" rnay scek darnages or injunctive relief.

To state a claim under sectiorr 51,

plantiff rnust prove three elements:

(l)

Defendants used his name,'portrait, picturo, or voice within the stte.

(2) For purposes oftrade or advertising.

(3) Without his corrsetrt.
Tn

the present action, thee can be no question that the frrst ancl third elements arc satisficd. Defendant entitled:

tlrough its subsidiary the Lifetrme Television Nctwork is produciug a movie based on plaintiff

"Romeo Killer: The Christopher Porco Story." (Tie "MOVIE"); and plarntiff has not given his conscnt for
such use of his name or likeness therein. The facral questions to be resolved herein arc thus: (1) Is the use of plaintifFs name or likeness in the

"MQVIE" ald related material for tradc, commercial, or advertising purposes; and (2) Is the "MOVIE"
'irewsworthy" or in the "public interest," thereby exenrpt from the provisio.ns of the Civjl Rights
Lar,v'?

An analysis ofthe facts herein unavoidably leads to the conclusion that deferrdant's exploitation of plaintiff s pcrsona is clearly for cornmercial purposcs, and is a substantially fictionalizcd troatmcnt of actual
events that is designed to entertain an audierrce, not inf'onn the public.
I

ARGUMENT

THE "MOVIE" [S A COMMERCIAL APPROPRIA'I'ION OF PI,AINTIFF'S NAME AND LIKENESS, AND IS KNOWINGLY FTCTIONALIZED TO THE EXTDNT THAT TT CANNOT BE
CONSIDERED "NEWSWORTHY" In his lctter to plairrtiff, defendant's counsel claims that the "MOVIE" is exempt from the privacy
restrictions founcl in Civil Rights Law $5 I because plaintifT"s uame and likeness are not used for "comntercial" purposes. (Exhibit

"G"). It should

be askcd thelr,

if defendant's use of plaintiff

s name and likeuess is not

for

purposes of trade, than what is its purpose'/ The tenl'urposes of trade" is "not susceptible to ready definitiorr." Marcinkus v. NAI' Pub' Inc., 522 N.Y,S.2d 1009,

101I (N.Y. Supp. 1987), However, "it is clear that 'for purposes of trade'

does not

contemplate the publication of a newspaper, magazitre, or book which imports truthful ne\TS or other factual

information to the

pblic. Though a publisher sells

a comrnodity, and expects a profit from the sale of his

5

product, he is imnrune fromthe interdict of secs. 50 and

clis,seminatirn

so

long as he confines himselltotbeunembroidered

offacls. Publishers

and motion pichres have occasionally been held to transgress the statute

in New York, bnt in each case the factual presentation w as embell.i,shed by ,some degree offctional.ization' Siclis

"

v. h--RPub. Corp.,113 F.zd 806,810

(CA2 1990) (emphasis added). Thus, "[w]lretheranitem is

newsworthy clepends solely on 'the colrtent ofthe article' - notthe publisher's 'motiveto iucrease circttlation. Messenger ex rel. Messenger v. Gruner & Jahr Prin{ing and Pub.,706 NYS2d 52, OIY 2000). This principle dates back almost 100 years. InBinns v. Vitagraph Co,,2I0 N.Y.

"'

5l (N Y l9l3),

the

Cogrt of Appeals held that tho use of the name and likeness of a person in a rnoving picture drarnatization of
an actual event in which thc person parlicipated was held to violate the stattrte. The Binns Court reasoned that

the picturcs portrayed were not "true pictutes of a current event but mainly a product of the

imagination," and the use of the

lrar-re

ald persona of the plaintiff was held to be oue for business and profit, (id trt 56).
2

and contrary to the statutory prohibition.

Fnrther, "[t.lhc rnedium of exprcssion employed in an alleged lreach of privacy should not and does not affect the principle of law to be applied. The Court of Appcals ofthis State, in tbc case of Gautier v. ]'rol'oc.tbqll.,304 N.Y. 354, held that tclevision enjoys the satne privileges accordecl to other media wltere the statutory riglrt to privacy is in issue, The court notes that the privilege enjoyed by television is tlrc same, not

greaternorl.s,thrthatenjoyedbyothermediaofcotnmurrication."
Sy,rtem

Youssottpuffv.CohtmbiaBraodcasting

\nc.,265 N.Y.S.2d at758-'759 (N.Y, Supp. 1965) (emphasis in original). Youssoupuff is interesting in its parallels to the instant actiott. lnYoussoupuff,. CBS broadcst
a

play that dramatically recounted the plaintifPs participation in fhe assassination of Rasputin. The producers

hired an actor to portray the plaintiff, and utilized fictionalized dialogue and actions in its recreation of an
actual event. The play was telecast over CBS stations in New York, and was done so in the regular course

of

the defendant's busincss and/or trade. On these facts, the trial court forurd that there was sufcient widence

for submission of the

In

case to the

jury. "MOVIE" is based ou

te

same vein, defendant in the present action has already conceded that the

a screenplay, (Exhibit

"4"),

and is a fictionalized

porfayal of actual cvents. Defendarrt has hired actors to

portray plaintiffand others, and "when asked aboutthe filmpossiblytaking liberties, Lifetime spokeswoman
Gina Noceo replied, 'Well, we say inspired by a true story. In fact, upon plaintiffl events portrayed in the
s

"' (Exhibits "C"

and

"D")

information and belief, dcfcndant has not interview ed anyone connected to the
and

"MOVIE,"

will thus have uo choice but to resort to 'the literary teclmires of

invented clialogue, inraginaryircidents, and attributedthouglrts and feelings." Spahnv. JulianMessner, Inc',

286 N.y.S.2d at 834 (N.Y. 1967). Because it is substantially fictionalized, the

"MOVIE" is nranfestly

dissimilar to a news or documentary broadcast onc rniglrt find on "Cl\N" or "FOX NEWS," ald as a result
is not afforded exemption undcr the "newsworthy" or 'ublic interest" exceptions to Civil Rights Law sections 50 urd 51.

Similarly, inSpahn,suprq,thedefendantpublishedafictionalizedbiographyoftheplaintiff,apublic

figure, Te author had "virtually no association with the subject. He admitted tliat
3

he never interviewed lvlr.

Spaln, any menber of his farnily, or any baseball player who kner,v Spahn.

'r'i+'|'<

The extent of [the Author's]

ancl

'vast amount of research' il.r the

ca^se

at bar anr.onntecl, pritnarily, to nothing lnore thatr ncwspaPer

rnagazine clippings, the authenticity of whicli the author rarely,

83

if ever, attempted to chcck ottl." (Id

a1

835-

6).

-lfts

in Spahlz, as in the pre sent action, the defendant dramatized cetain evcnts in the life of a public

person, using a fictjonalized portruyalto ma^kc his biography more appealing to ris audience. WhlleJdctual

reporhng of plaintiff's life hsreh would be protected from

liabil

under Civil Rights Law Section 51 as

'1rewswortlry," "[t]he fictictious is not." (id,32S) (see also Marcinkus, supra, at 1013),

Defendanl's counscl attempts to compare the facts herein, (which cojncidc wth Binns-Spahn "fr,ctionalizaliol" cases), to such
cases as Finger

v. Omni Publications, 564 N'Y.S.2d

l0l4;

Arrington v'

NewYorkTimesCo.,449N.Y.S.2d94l;

and

Murrayv.NewYorkMagazineCo,,3ltlN.Y.S.2|4T4; all
s

tlrree of which irrvolved unauthorized and allegedly false and damagirg use of plaintiff

photographs to

illustyate newswortry articles. Becatrse the photographs illustratcd newsworthy articles, because there was
a real rclatiortship between the photographs. and tlre articlcs, and because the articles 'were not advelisements

disguise, the courts all concluded that none ofthosc plaintiffs stated a Civil Riglrts Law clainr (see,

Messenger, supra).

"By contras! Binns andSpahnconcerned Murraycases]. Inthose

a strikingly differeirtscenario fromthe

linger-Arrington-

oases, defurdantiuventodbiographies

ofplaintiff

lives. The Courts concludcdthat

the substantially fi ctionalizcd works at issuc were nothing more than attempts to trade ou the pcrson Spahrr or

ofWarren

Johl

Bils.

Tus ,tnder Binns and Spahn, an article rrray be so infccted with fction, clramatization,

or entbellishmet that it camrot be said to

I4essenger, supla, aI 129.

flllfill

the purpose of the newsworthy cxception'"

One neecl look no furthe than the title ofthe

"MOVIE" hercin: "The Romeo Killer," to determine the

filrns ainr is "dramatization, ratherthan informatiott," Lqhiri v, DaityMinor Inc',162 Misc. 776,78 (1937).
Arrd bccause televisio, "like othcr lnedia **'l' may have eiilrcr a trade aspect or infomative or nelvs
4

aspect," (]qutier, supra,359 (cmphasis adcled); simply because a public hgnre or a lresetly ttelvswortlt'
person is the proper subject of a uelvs or informalivc presentation, the newsworthy "privilcge doe.s not extclld

to conrmercialization of his personality tluough a form of treatrnent distinct from the dissemination of ncws
or infonnatiott i d,
3

59.

The testion is whetherthe story, "as prcsented to the [consumer]," was so enibellished in thc telling that it was no longer a factual reporl." i(l 360. If so, its 'hewsrvorthiness" irmnunity frotn the opcration of the
statute is forfeited and lost, Messenger, aI133,(BELLACOSA in DISSENT).

If defendant herein wishes to arguethattlte "MOVIE" is strctly factual or "cditorial," (Exhibit "G"),
and was produccd with a "news aspect" rather than to entertain its audience for profit, it is welcome to do so'

Tlrisdisputehotvovcr,isafactualdeternnatiotrforajury. See,Nieve'sv.HomeBoxOffce'815NYS2d495

(NY Sup, 2006); "The defendant's central argument is thattheii use of plaintiffs likeness was hot for
advertising or trade purposes utder the statute. The Court notes that in this case the detennination catnot be

made as a maer of law because there is a dispute a[s] to the purpose for which plaintiffls likeness lvas
en'rployed." Based ontlreforegoirrg, as plaintiffhas no otherremedy atlaw otherthanaternporary restraining order

ad a preliminary injrurction to prevent violation of his riglrt to privacy pending the outcome of this case, and

will be irreparably injured if defendant airs thc "MOVIE"

to gralt the rnotion fbr
a

as

planned, plaintiff prays that this Court soes

contained herewith.

fit

tenrporary restraining order and

a prelimirary injunction

Dated: February 12,2013

Poco

Plaintiff pto-se

EXHIBIT D