138 F. Supp. 3d 226
E.D.N.Y2015Background
- Plaintiff Andrew Greene sued producers/distributors of The Wolf of Wall Street, alleging the film’s character Nicky “Rugrat” Koskoff is an identifiable depiction of him, injuring his reputation and privacy.
- Greene previously appears by name and nickname in Jordan Belfort’s memoir (the Memoir), which the Film is based on; the Memoir attributes colorful physical traits (toupee) and alleged misconduct to Greene that he denies.
- The Film does not use Greene’s name or his actual image but includes a Koskoff character who (like Greene) wears a toupee, is close to Belfort, and is shown in criminal/drug/sexualized scenes; some events differ from the Memoir.
- Greene pleaded statutory privacy claims under N.Y. Civ. Rights Law §§ 50–51, a common-law privacy claim, and two libel (defamation) causes of action alleging negligence and malice.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6); the Court dismissed the statutory and common-law privacy claims but allowed libel claims to proceed on the “of and concerning” element and granted leave to replead negligence as grossly irresponsible libel per Chapadeau.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Film violated statutory privacy (N.Y. Civ. Rights Law §51) | Film’s Koskoff is so similar to Greene that his likeness/identity was appropriated for trade | Film did not use Greene’s name, portrait, or picture; fictitious/composite character falls outside §51 | Dismissed with prejudice — §51 narrowly covers literal name/portrait/picture; superficial similarities insufficient |
| Whether New York recognizes a common-law privacy right | Greene asserts an independent common-law privacy claim | New York law provides only statutory remedy under §§50–51 | Dismissed with prejudice — no common-law right of privacy in NY |
| Whether Film’s portrayal is “of and concerning” Greene for libel | Greene: similarities (toupee, role, nickname) make Koskoff identifiable to those who knew him | Defendants: Koskoff is a fictional composite; cannot be “of and concerning” Greene as a matter of law | Denied as to this element — factual question exists; plausible claim survives to discovery |
| Required fault standard for defamation (private-figure plaintiff re: public concern) | Greene pleaded negligence and actual malice; seeks recovery for reputational harm | Defendants: matter is of public concern; Chapadeau requires showing gross irresponsibility for private-figure plaintiffs on public matters; mere negligence insufficient | Negligence pleading dismissed without prejudice; plaintiff may replead to allege grossly irresponsible publication (leave granted). |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: plausibility and that courts need not accept naked legal conclusions)
- Finger v. Omni Publ’ns Int’l, 77 N.Y.2d 138 (1991) (§51 limited to nonconsensual commercial appropriation of name, portrait, or picture)
- Messenger v. Gruner + Jahr Printing & Pub., 94 N.Y.2d 436 (2000) (§50–51 to be narrowly construed; no common-law privacy remedy)
- Chapadeau v. Utica Observer-Dispatch, 38 N.Y.2d 196 (1975) (private-figure defamation on matters of public concern requires gross irresponsibility)
- Davis v. Costa-Gavras, 619 F. Supp. 1372 (S.D.N.Y. 1985) (analysis of libel-by-fiction; factual finding required whether character is identifiable as plaintiff)
- Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163 (2d Cir. 2000) (elements of libel under New York law)