Written by Leo M. Lichtman
Earlier this month, the Southern District of New York gave its stamp of approval to the hit film Hustlers, when it dismissed an action for invasion of privacy and defamation brought by Samantha Barbash, the real-life ringleader of an illegal conspiracy that influenced the film. In its order of dismissal, the court provided important guidance on New York’s invasion of privacy law and the standards for defamation.
The case concerns the film Hustlers, which was released last year and stars Jennifer Lopez as Ramona—the ringleader of a group of adult dancers who engaged in a scheme to drug rich patrons and steal their money. Hustlers is not a work of pure fiction, but rather was inspired by Barbash’s story. Barbash—who worked at the Score’s Gentleman’s Club and Hustler’s Club in Manhattan—pled guilty to conspiracy, assault, and grand larceny in 2015. That same year, New York Magazine published an article titled “The Hustlers at Scores,” which described the scheme to which Barbash pled guilty and reported that Barbash had “come up with the innovation that was making her rich: a special drink spiked with MDMA and ketamine” that was given to the scheme’s victims. The magazine article served as the inspiration for the film.
Defendants initially sought Barbash’s consent to the production of the film, but Barbash refused, and after the film was released, she sued, alleging (1) that defendants violated her right to privacy under N.Y. Civil Rights Law (“NYCRL”) §§ 50 and 51; and (2) that they defamed her in six statements and scenes in the film.
The court first considered whether Barbash stated a claim for violation of her statutory right of privacy under NYCRL §§ 50-51. Section 50 provides that “[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 . . . is guilty of a misdemeanor.” Section 51 provides for a private right of action for such violation. Noticeably absent from the statue is a reference to “likeness or character.”
While some jurisdictions, such as California, provide protections under common law for likeness and character, New York does not. Therefore, the critical question was whether a claim under §§ 50 and 51 protects an individual’s “likeness or character,” as Barbash alleged that defendants exploited her “likeness and character” in creating and marketing the film. The court determined that it did not. Rather, §§ 50 and 51 protects only the nonconsensual use of “name, portrait, or picture.” For this reason, the court held that Barbash’s allegation that her “likeness and character” were exploited in the film was not sufficient.
The court next determined whether Barbash stated a claim for defamation. To plead a defamation claim in New York, a plaintiff must allege five elements: (1) a written defamatory factual statement concerning the plaintiff; (2) publication to a third party; (3) fault; (4) falsity of the defamatory statement; and (5) special damages or per se actionability. The defendants attacked Barbash’s pleading of the first element, on the basis that the identified statements did not concern Barbash, and the fourth element, on the basis that the statements are substantially true; and further argued that Barbash was, at minimum, a limited-purpose public figure who was required to plead actual malice.
Addressing the first element, the court explained that a statement “concerns the plaintiff” for purposes of a defamation claim when the reading public acquainted with the parties and the subject would recognize the plaintiff as a person to whom the statement refers. In other words, if those who know the plaintiff can make out that the statement is about her, then the statement can be said to “concern” the plaintiff. Here, the court held that Barbash met the first element, because the complaint alleged that defendants deliberately tied the promotion of the film to the real-life events involving Barbash.
Addressing the fourth element, the court explained that in determining the falsity of the statement, it asks whether the statement is “substantially true”—meaning that the overall “gist or substance” of the statement is true. Of the six statements at issue, two statements were dismissed because they were “completely or substantially true”: (1) The portrayal of Barbash in possession of illegal drugs; and (2) the portrayal of her drugging individuals without their knowledge or consent. In determining these statements were true, the court took judicial notice of Barbash’s 2015 guilty plea, in which she admitted to participating in a conspiracy to provide victims with illegal drugs in order to gain control of and use their credit cards. That Barbash also possessed the drugs was a well-supported inference. The court also dismissed another statement—the portrayal of Barbash as a cold individual indifferent to the well-being health, and life of others—because it was a statement of opinion, as opposed to a statement of fact, and therefore could not form the basis of a defamation claim.
The court did find, however, that Barbash adequately plead falsity as to three statements: (1) the statement that she concocted and developed the recipe of the illicit drugs utilized in furtherance of the crimes depicted; (2) the portrayal of her manufacturing the illegal substances in her home where she lived with her child; and (3) the portrayal of her using illegal drugs. The court reasoned that Barbarsh’s guilty plea did not suggest that she developed, manufactured, or personally used illegal drugs, and so such statements may have had a “different effect” on the mind of the viewer than the admissions in her guilty plea.
This ultimately did not matter however, because the court held that as a threshold matter, Barbash was a limited-purpose public figure, and as such was required to allege that defendants made the false statements with knowledge that they were false or in reckless disregard of their falsity—otherwise known as the “actual malice” standard. The purpose of this more stringent requirement for public figures who are the subject of speech is rooted in the First Amendment, as the Supreme Court has explained—to “assure to the freedoms of speech and the press that breathing space essential to their fruitful exercise.” Gertz v. Welch, 418 U.S. 323, 342 (1974). Here, Barbash was a limited-purpose public figure as she thrust herself into the public eye and was required to allege actual malice: she entered a guilty plea in open court and then gave interviews about what she did, including to the reporter that penned the article on which the film Hustlers was based, and, after the film was released, gave two interviews with Vanity Fair and wrote a memoir. Because her pleadings did not allege malice, the court dismissed the defamation claim as well.