District court dismisses adult entertainment host’s invasion of privacy and defamation claims against producers and distributors of film Hustlers, which tells story of plaintiff drugging unwitting customers, to which she pled guilty, holding that New York’s right of publicity statute does not extend to protecting person’s character or likeness, and that plaintiff, limited-purpose public figure because she gave interviews about her criminal activities, failed to plead actual malice.
Samantha Barbash sued the producers of the film Hustlers, alleging invasion of privacy under New York Civil Rights Law, which prohibits nonconsensual use of a person’s name, image or voice, and defamation. The film, starring Jennifer Lopez as the main character, tells the story of a scheme in which Lopez’s character is the ringleader of a group of adult entertainment dancers who drugged unsuspecting patrons to rob them of their money. Barbash, who had been an adult entertainment host in New York and in 2015 pled guilty to conspiracy, assault and grand larceny for her role in a similar scheme, asserted that Lopez’s character was based on her. On defendants’ motion, the district court dismissed the suit in its entirety.
New York magazine published an article in December 2015 that described the scheme to which Barbash pled guilty. Inspired by the article, defendants produced, developed and distributed the film Hustlers, which was released in September 2019. Defendants sought Barbash’s consent for the production of the film, but she refused. After the film’s release, Barbash and her attorney gave two interviews about the film to Vanity Fair, and Barbash wrote a memoir on the same subject, which was published in April 2020.
The court first rejected Barbash’s claim that the use of her likeness and character in the movie and in marketing materials violated the New York statute that prohibits the commercial use of a living person’s “name, portrait, picture, or voice.” The central issue was whether the law also protects a person’s “likeness and character,” and the court held that it did not, reasoning that the legislature intended the statute to be narrowly construed and limited to appropriation of the enumerated elements. Barbash’s allegations were therefore insufficient under the statute.
The court likewise dismissed Barbash’s defamation claim in its entirety, agreeing with defendants that Barbash was a limited-purpose public figure and that she had failed to plead the requisite actual malice to sustain her claims—but not before analyzing the truth or falsity of each of plaintiff’s claims and concluding that some, but not all, of the alleged statements were potentially false. Of several statements alleged, the court held that the portrayal of the character based on Barbash as possessing illegal drugs and the portrayal of her drugging individuals without their knowledge or consent were substantially true because Barash pled guilty to intentionally drugging at least one victim and the inference that she was in possession of drugs was “well supported by the record” of her guilty plea. The court also held that the alleged portrayal of Barbash as a “cold individual indifferent to the well-being, health, and life of others” was a matter of opinion and therefore not actionable. The only allegedly false statements the court found actionable were the portrayals that Barbash was the person who concocted and developed the recipe of the drug, that she manufactured the drug in her home where she lived with her child, and that she herself used illegal drugs.
Despite its determination that these statements were actionably false, the court dismissed Barbash’s claims on the grounds that she was a limited-purpose public figure and that she failed to plead the required actual malice. Barbash voluntarily entered the public arena, according to the court, through her guilty plea as well as her public statements about her criminal activities. The court rejected Barbash’s argument that she was unwillingly dragged into the public arena, distinguishing an earlier case in which defamatory statements were made about the plaintiff 16 years after he was sentenced for a crime but then returned to private life. In contrast, the court found that Barbash had immediately injected herself into the public arena, rejecting plaintiff’s argument that her public engagement was merely an “attempt to make the best of it.”
Summary prepared by Tal Dickstein and Jong-Min Choi