By Dr. Emma Perot
The allure of an inside look into the lives of our favorite musicians, infamous politicians, historical disruptors, and notorious criminals draws crowds to cinemas and streaming platforms. Movies and television shows that are ‘based on a true story’ such as biopics and docudramas use creative license to condense time, create composite characters, and invent dialogue to enhance the storyline. The delimitation of how far a storyteller can go should be decided based on the defamation standard of actual malice which applies to public figures.[1] Yet, in New York, the substantial fictionalization doctrine under the right of publicity chills speech by allowing a claim to be brought in the absence of any significant reputational harm, once there is commercial gain to the defendant.
While there is no legal right to one’s life story,[2] the risk mitigation provided by entering into a life story rights deal can save a producer time and money on future litigation, particularly given the divergent approaches to fictional works in the two major entertainment hubs of California and New York. In California, expressive works such as movies and television series are essentially immunized from the right of publicity by the transformative use test,[3] and newsworthiness exception,[4] both of which are bolstered by general judicial reference to the First Amendment.[5] In contrast, while New York recognizes that newsworthy works are to be protected, fictional portrayals can potentially be found to infringe where there is substantial fictionalization.[6]
The substantial fictionalization doctrine has been contributing to risk mitigation practices for over a century. Since 1903, Section 51 of Article 5 of the New York Civil Rights Law has provided that use of ‘name, portrait, picture, likeness or voice’ for ‘advertising purposes or for the purposes of trade’ must be consented to.[7] In 1913, the plaintiff in Binns v. Vitagraph Co. of America challenged his portrayal in a film which depicted his historic use of telegraph technology to help rescue passengers after the collision of two steamships.[8] The element of Binns that reverberated through subsequent cases was the interpretation of ‘purposes of trade.’ Binns planted the seed for what would later become known as the substantial fictionalization doctrine by tying commercial use to portrayals that are inaccurate.
The doctrine has been examined in several cases,[9] and most recently reared its head in Porco. Porco concerned a movie by Lifetime, ‘Romeo Killer: The Chris Porco Story’ which depicted the crime, investigation, and prosecution of Chris Porco’s murder of his father, and attempted murder of his mother.[10] In 2018, the defendant’s application for summary judgment was denied as there were questions of fact ‘as to whether the film’s account of events was so materially and substantially fictitious as to give rise to liability.’[11] The court found that the film was newsworthy and did not lead viewers to believe it was completely factual as it was ‘based on a true story’ and provided a disclaimer about changes that were part of the fictionalization.[12] Therefore, even if newsworthy, the portrayal must either be accurate, or make it clear to viewers that the portrayal is partly fictionalized to avoid liability.
The New York legislature has clearly recognized the difficulties posed by the substantial fictionalization doctrine. The legislature introduced the post-mortem right of publicity in 2020 but removed the problematic language of ‘purposes of trade,’ and most importantly, provided an exception to infringement for works such as docudramas, or historical or biographical works, regardless of the degree of fictionalization.[13] While this is a step in the right direction, portrayals of living people still have to toe the line between creative license and veracity.
Considering that creative works are distributed nationally, the impact of the substantial fictionalization doctrine on the entertainment industry can be summed up by a slight variation of the famous tune: New York, New York—if you can’t make it here, you can’t make it anywhere.
Dr. Emma Perot is a Tenured Senior Lecturer at the Faculty of Law, University of the West Indies. Her area of expertise is intellectual property law, with a focus on the right of publicity.
[1] New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964); Cantrell v. Forest City Pub. Co., 419 U.S. 245, 251 (1974).
[2] Jorge Contreras & Dave Fagundes, The Life Story Rights Puzzle, 14 Harv. J. Sports & Ent. L. 153, 157,
160–62 (2023).
[3] Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 404–405 (2001).
[4] Cal. Civ. Code § 3344 (West 2025); Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790, 794–97 (1995), modified (May 30, 1995).
[5] De Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845, 849 (2018).
[6] Binns v. Vitagraph Co. of America, 210 N.Y. 51, 56 (1913).
[7] N.Y. Civ. Rights L. § 51 (2025).
[8] Binns, 210 N.Y. at 51.
[9] See Spahn v. Julian Messner, Inc., 21 N.Y.2d 124 (1967); Univ. of Notre Dame Du Lac v. Twentieth Century-Fox Film Corp., 22 A.D.2d 452 (1st Dep’t 1965); Hicks v. Casablanca Records, 464 F. Supp. 426, 432 (S.D.N.Y. 1978).
[10] Porco v. Lifetime Entm’t Servs., 195 A.D.3d 1351, 1352 (3rd Dep’t 2021).
[11] Porco, 195 A.D.3d at 1352.
[12] Porco, 195 A.D.3d at 1356.
[13] N.Y. Civ. Rights L. § 50-f (2025).