In a development that could reverberate throughout the entertainment industry, a New York Supreme Court judge has taken the bold step of enjoining the broadcast of Lifetime Television’s TV movie, , which was scheduled to air on Saturday.
The film is based on the true story of the murder of Peter Porco and the attempted murder of his wife, Joan Porco, the resulting criminal investigation, and the prosecution and conviction of their son, Christopher Porco, for those crimes. The case drew national news attention, and Lifetime’s planned film drew a lawsuit from the convicted killer, who alleges that violates his rights.
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On Tuesday, New York Supreme Court judge Robert Muller issued an injunction that not only prevents the airing, but also prohibits Lifetime from promoting the film. In reaction, Lifetime is filing an emergency application to vacate or stay the injunction on appeal. According to court documents, the cable network says it stands to lose more than a million dollars if it is not given immediate appellate relief.
Throughout the years, publicity rights has become a bigger and bigger issue in entertainment. The laws vary by state, but generally protect an individual’s likeness from being exploited. Increasingly, the boundaries between an individual’s right to protect an image and First Amendment allowances on free expression aren’t particularly clear, and some lawyers wonder if the confusion might potentially chill speech.
This has the potential of being one of those cases.
Porco sued Lifetime, claiming that the film violated New York Civil Rights Section 51 — the state’s version of publicity rights, which allows a person to seek redress if his or her "name, portrait, picture or voice is used… for advertising purposes or for the purposes of trade without the written consent first obtained."
The convicted killer, who hasn’t seen , alleged that the movie was a “substantially fictionalized account . . .about plaintiff and the events that led to his incarceration."
Lifetime counters that "the essential elements of movie are true and accurate, and based on court and police records, interviews with persons involved, and historical and other documents."
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The cable network also points out that Porco’s story has been told on CBS’ and the TruTV series .
Without even getting a summons, Lifetime has now been ordered to not air its TV film. Judge Muller has issued an injunction, finding that "Defendant appears to concede that the movie is fictionalized." The judge has said that he is "not persuaded" that monetary damages would be sufficient redress and has also waived away Lifetime’s concern that the injunction represents a "prior restraint" on its free speech rights.
According to an appeal that Lifetime is filing — obtained by — "The Supreme Court’s order is unprecedented and would cause grave and irreparable damage not just to Lifetime but to the constitutional protections for speech."
Lifetime cites many landmark rulings that are supposed to restrain judges from making prior restraints on free expression and says:
"This is not a case where national security concerns are in jeopardy. It is not even a case involving potential irreparable injury from the disclosure of trade secrets or other confidential information—it involves a movie based on the public facts of a murder prosecution. While plaintiff may not want the story of his crime repeated in a television movie, the constitutional protection of speech and press on matters of public concern flatly prevent the issuance of an order enjoining the broadcast of the movie."
The defendant also makes the case that its film fits the "newsworthy" exceptions to New York’s publicity rights law and that claims of a story being "fictionalized" don’t overcome that.
Lifetime also says that Porco hasn’t made a sufficient case about the irreparable harm he’ll face if the TV film is aired on Saturday and says that the the balance of hardships tips entirely in its favor.
After spending $2 million to acquire the rights to the film and nearly $1 million to promote the movie as "appointment viewing," Lifetime says that an injunction would have a "devastating financial and reputational impact" on the network — that it "will lead to a reluctance among cable affiliates and advertisers to spend money on Lifetime," that TV viewers "will come to see Lifetime as unreliable and not trustworthy" when they find that the program doesn’t air as scheduled, that advertisers will have to be made whole, that local cable operators will be out from their own investments in advertising, and more.
Says the network, "Even now, Lifetime employees are scrambling to comply with the Supreme Court’s order at great cost in human and financial resources."