articles not liable for republication absent "concrete evidence of . . . involvement in the republication"). Cerasani has not alleged that defendants authorized or approved the videotaping and distribution of the pre-release film. Nor would it make sense for the defendants, who have an obvious interest in the commercial success of the film, to promote the distribution of bootleg copies of their unfinished film. Accordingly, Cerasani's first cause of action fails as a matter of law and must be dismissed. The allegation that defendants negligently permitted the videotaping of the pre-release version of the film persists in the proposed second amended complaint. To the extent Cerasani moves to amend his complaint to maintain this negligence theory, the motion is denied.
The first cause of action in Cerasani's proposed Second Amended Complaint also alleges that he was defamed by the publication of the pre-release film to the attendees at the screening. (Proposed Second Am. Compl. P 47). Under New York law, "every distinct publication of a libelous writing or a slanderous statement gives rise to a separate cause of action." Pruiss v. Bosse, 912 F. Supp. 104, 106 (S.D.N.Y. 1996) (citations omitted). Even assuming this allegation sufficiently states a separate claim for defamation, because I hold, as discussed below, that Cerasani is libel-proof, the cross-motion for leave to amend in this respect is denied in any event.
2. Second Cause of Action --
Defamation By the Released Film
In his second cause of action, Cerasani alleges that the publicly released version of the film portrays him committing the same violent assaults and murders as depicted in the pre-release film. (Am. Compl. P 52). While the character in the released film about whom Cerasani complains is named "Paulie," Cerasani claims that he is easily identified as the "Paulie" character because of the character's relationship to Sonny Black, and because not all of the references to Cerasani's name were deleted from the released film. (Id. at PP 50-51).
Defendants argue that Cerasani's libel claim is deficient and must be dismissed because Cerasani: (a) is "libel-proof" as a matter of law; (b) fails adequately to allege that the film falsely portrays his "participation" in the murder of the Captains of the Bonanno Family; and (c) cannot reasonably allege that the truck hijacking scene about which he complains is "of and concerning" him.
a. Is Cerasani Libel-Proof?
(1) The Legal Standards
The Second Circuit has held that "a plaintiff's reputation with respect to a specific subject may be so badly tarnished that he cannot be further injured by allegedly false statements on that subject." Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 303 (2d Cir. 1986), cert. denied, 479 U.S. 1091, 94 L. Ed. 2d 158, 107 S. Ct. 1303 (1987); see also Cardillo v. Doubleday & Co., Inc., 518 F.2d 638, 639 (2d Cir. 1975). Under the libel-proof plaintiff doctrine, if there is little or no harm to a plaintiff's already low reputation, then the statements are not actionable. See Herbert v. Lando, 781 F.2d 298, 311 & n.9 (2d Cir.), cert. denied, 476 U.S. 1182, 91 L. Ed. 2d 545, 106 S. Ct. 2916 (1986). The Second Circuit has provided that in such cases, "even nominal damages are not to be awarded." Rather, "the claim should be dismissed so that the costs of defending against the claim of libel, which can themselves impair vigorous freedom of expression, will be avoided." Guccione, 800 F.2d at 303; see also Cardillo, 518 F.2d at 640 ("With Cardillo himself having a record and relationships or associations like these, we cannot envisage any jury awarding, or court sustaining, an award under any circumstances for more than a few cents' damages.").
At the same time, the Second Circuit has cautioned that "the libel-proof plaintiff doctrine is to be applied with caution, since few plaintiffs will have so bad a reputation that they are not entitled to obtain redress for defamatory statements . . . ." Guccione, 800 F.2d at 303; see also Buckley v. Littell, 539 F.2d 882, 889 (2d Cir. 1976) (confining the "limited, narrow" libel-proof doctrine to the "basic factual context" of the Cardillo case that first enunciated this defense), cert. denied, 429 U.S. 1062, 50 L. Ed. 2d 777, 97 S. Ct. 785, 97 S. Ct. 786 (1977); Sharon v. Time, Inc., 575 F. Supp. 1162, 1171-72 (S.D.N.Y. 1983) (rejecting application of libel-proof doctrine on the particular facts at issue). While the doctrine has been invoked most frequently on the basis of criminal convictions, see, e.g., Ray v. Time, Inc., 452 F. Supp. 618, 622 (W.D. Tenn. 1976), aff'd, 582 F.2d 1280 (6th Cir. 1978); Cardillo, 518 F.2d at 639-40; Logan v. District of Columbia, 447 F. Supp. 1328, 1331-32 (D.D.C. 1978), the doctrine is not limited to plaintiffs with criminal records. See Guccione, 800 F.2d at 303 (Guccione's reputation regarding adultery rendered him libel-proof); Wynberg v. National Enquirer, Inc., 564 F. Supp. 924, 928-29 (C.D. Cal. 1982) (plaintiff's reputation for taking financial advantage of Elizabeth Taylor, in addition to convictions related to his treatment of women in general, rendered him libel-proof); see also Sharon, 575 F. Supp. at 1171 (discussing "profound reputational effects" of criminal convictions).
(2) Cerasani's Reputation
Here, defendants essentially make two arguments. First, they argue that Cerasani's reputation as a habitual criminal and Mafia associate is so damaged that it cannot be further injured. Defendants rely on (a) Cerasani's criminal record, (b) the publication and widespread dissemination of the book's depiction of Cerasani as a Bonanno Family career criminal, (c) Agent Pistone's testimony at the trial in United States v. Napolitano about Cerasani's alleged involvement in the murders of three Bonanno captains, and (d) national news coverage of Cerasani's involvement in criminal activity, including recent widespread press coverage of his alleged involvement in a Mafia scheme to manipulate the stock market.
Second, defendants argue that Cerasani's reputation with respect to his participation in certain violent acts depicted in the film is so damaged that it cannot be further injured. To establish Cerasani's reputation for these specific acts of brutality, defendants rely on the description in the book of Cerasani's committing such acts, Agent Pistone's trial testimony, and media coverage of the trial. Defendants underscore their argument by pointing out that Cerasani has never sued the authors or publishers of the book for defamation.
Cerasani contends that the "sting" of the alleged defamation by defendants is that he committed certain brutal beatings and vicious murders, not simply that he is a convicted felon or a "known Mafia associate." As to those specific acts, Cerasani relies on his acquittal in Napolitano. Accordingly, Cerasani argues that there is no basis here for application of the libel-proof plaintiff doctrine, since he is not disreputable with respect to the specific subject matter at issue.
It is clear that Cerasani's reputation is tarnished. Under Federal Rule of Evidence 201, this Court can, and does, take judicial notice of Cerasani's criminal record. See Ives Lab., Inc. v. Darby Drug Co., 638 F.2d 538, 544 n.8 (2d Cir. 1981), rev'd on other grounds sub nom. Inwood Lab, Inc. v. Ives Lab., Inc., 456 U.S. 844, 72 L. Ed. 2d 606, 102 S. Ct. 2182 (1982) (taking judicial notice of return of indictments); Miller v. News Syndicate Co., 445 F.2d 356, 357 n.1 (2d Cir. 1971) (in defamation action, court took judicial notice of court proceedings that led to plaintiff's acquittal of criminal charges referred to in allegedly defamatory publication); see also Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992) ("[a] court may take judicial notice of a document filed in another court 'not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings'") (citation omitted); Kowalski v. Gagne, 914 F.2d 299, 305-06 (1st Cir. 1990) (court may take judicial notice of convictions and proceedings in other courts); Commodity Futures Trading Comm'n v. Co Petro Mktg. Group, Inc., 680 F.2d 573, 584 (9th Cir. 1982) (taking judicial notice of criminal conviction).
Cerasani is a convicted racketeer, Mafia associate, bank robber, and drug dealer. He is also under indictment for his alleged participation in an organized crime scheme to manipulate the stock market, including through extortion by threats of violence. The fact of his acquittal in the Napolitano trial, where the burden of proof is obviously much higher than in a civil proceeding, does not restore his damaged reputation. Nor does it even mean that it is not more likely than not that he committed the violent acts depicted in the film. The fact of acquittal simply means that the government did not prove beyond a reasonable doubt that Cerasani committed the crimes charged.
It is equally clear that Agent Pistone's account of Cerasani's violent, criminal conduct as a member of Sonny Black's crew, including drug trafficking, illegal weapons possession, loansharking and murder, has been widely disseminated. Pistone testified about those acts in the 1982 trial of United States v. Napolitano,
and described them in the 1987 publication and the 1997 republication in paperback of the book. It is somewhat incredible that Cerasani ignored the publication of a book that purported to tell the "true story" of his role as "right-hand man" of Sonny Black, and which described his alleged participation in numerous crimes ranging from loansharking to drug trafficking to murder, but now complains when a fictionalized version of the story is made into a motion picture. In addition, the media covered the trial closely. Pistone's gripping testimony about the great strength demonstrated by Cerasani in moving Big Trin's corpse was widely covered in the press.
The Court reviewed the pre-release and final versions of the film, mindful of Cerasani's criminal record and his well-publicized reputation for having committed the violent acts at issue. Neither version of the film portrays Cerasani or "Paulie" engaged in conduct notably worse than that described by Agent Pistone from the witness stand, depicted in the book, and publicized by the press, and no reasonable jury could conclude otherwise. In particular, I note that the film does not depict Cerasani or "Paulie" personally killing anyone. Rather, the murder scene is consistent with Pistone's trial testimony, the book, and the media coverage.
In light of all the circumstances, I am persuaded that Cerasani is libel-proof as a matter of law with respect to the depiction in the film of his participation in certain violent acts, including the Mafia murders. Cerasani is generally reputed to be an associate of organized crime. He has committed serious crimes. While he was not convicted in the Napolitano trial, accounts of his participation in the acts depicted in the film have been widely disseminated since 1982. Cerasani's reputation is sufficiently tarnished that at most he could collect nominal damages, even assuming he could overcome the tremendous legal hurdles before him in this case. In view of the Second Circuit's analysis in Guccione and Cardillo, I therefore find Cerasani to be the exceptional, libel-proof plaintiff.
b. Has Cerasani Sufficiently Alleged
The Falsity of the Film's Murder Scene?
Even assuming that Cerasani is not libel-proof, defendants argue that his libel claim with respect to the murder scene fails as a matter of law because he has failed to allege adequately that the scene contains any false or defamatory assertions of fact. Specifically, defendants argue that the film depicts the "Paulie" character as a bystander, present at the murder scene, who carried and dismembered the bloody corpse of one murder victim. According to defendants, Cerasani has, artfully, not alleged that the murder scene is defamatory in depicting his presence at the murder scene and his participation in the dismemberment. He has, defendants contend, limited his allegation to a denial that he actually committed the murder, which is irrelevant to the scene as depicted in the film. Cerasani argues that the clear inference from the murder scene in the film is that he was actually involved in the killings themselves, and that he has unambiguously denied any such role.
Cerasani alleges in his amended complaint as follows:
Yet another criminal act which the "Boobie" character is portrayed as participating in is the commission of a vicious murder of a key organized crime figure named Big Trin, as well as two additional organized crime figures. This murder scene is particularly gruesome. In it, the top of one victim's skull is shown being blown off with blood and brain-matter flying everywhere. Yet another victim is shown with flesh being torn off his side by a gun shot, leaving a gaping hole and blood pouring out. After the murder, the "Boobie" character goes out to the car where Brasco is waiting and brings him to the basement where the murders were committed. He then hands Brasco a large saw-like knife which is then used to dismember the body of at least one victim.
(Am. Compl. P 27). In the next paragraph of his complaint, Cerasani alleges that "as regards plaintiff, the murder scene is entirely false. Plaintiff did not murder an organized crime figure named 'Big Trin.' Plaintiff has never committed or been charged with murder." (Id. at P 28).
Cerasani's amended complaint alleges that he never actually killed anyone, but does not deny that Cerasani was present at the murder scene or that he participated in dismembering a body. The statement "as regards plaintiff, the murder scene is entirely false" is ambiguous and does nothing to clarify Cerasani's role in this criminal act. The film, however, does not depict the Cerasani or "Paulie" character actually killing anyone. No such inference is warranted from what is depicted. Accordingly, Cerasani has failed to allege any false or defamatory assertion of fact. I dismiss Cerasani's defamation claim with respect to the murder scene on this basis as well.
c. Is The Hijacking Scene
"Of and Concerning" Cerasani?
Hornbook libel law requires that an allegedly defamatory statement must be "of and concerning" a particular individual. See, e.g., Fetler v. Houghton Mifflin Co., 364 F.2d 650, 651-53 (2d Cir. 1966). A complaint must be dismissed where this requirement is not satisfied. See Anyanwu v. Columbia Broadcasting Sys., Inc., 887 F. Supp. 690, 692 (S.D.N.Y. 1995); Church of Scientology Int'l v. Time Warner Inc., 806 F. Supp. 1157, 1159-60 (S.D.N.Y. 1992).
Here, Cerasani alleges that he is "implicated  by inference [in] the vicious beating of a driver during a truck hijacking." (Am. Compl. P 23). In this truck-hijacking scene, approximately six men, all clad in black, are depicted running around the targeted truck. Sonny Black and one of the masked men are depicted kicking the truck driver. This scene is part of a montage in which various crimes committed by Sonny Black are juxtaposed in rapid succession with scenes of Sonny Black partying at a nightclub. Although Cerasani admits that all of the characters in this hijacking scene except Sonny Black appear in the film "wearing ski masks and do not remove them," Cerasani nevertheless alleges that "the portrayal of Sony Black committing a crime with individuals whose faces are covered is sufficient to infer the participation of the ["Paulie"] character in the hijacking" because the "Paulie" character is portrayed in the film "as one of Sonny Black's right-hand men" who "participates in all of Sonny Black's illicit activities." (Id.). The inference Cerasani draws is not a reasonable one.
First, in the crime scene immediately following the truck-hijacking, Sonny Black is depicted robbing a clothing warehouse with three other men, none of whom is the "Paulie" character. Thus, a viewer could not reasonably conclude that "Paulie" participates in all of Sonny Black's criminal activities. Second, there is no distinguishing voice, clothing, physical appearance, or other feature that would identify any of the masked truck-hijackers as "Paulie." Finally, I note that plaintiff offers no opposition in his motion papers to defendants' motion to dismiss this claim. Accordingly, even assuming Cerasani is not libel-proof, defendants' motion to dismiss this claim is granted on this independent basis as well.
3. Third Cause of Action --
New York Civil Rights Law § 51
a. Cerasani's Present § 51 Claim
Based on the Released Film
Cerasani's third cause of action pursuant to New York Civil Rights Law § 51
alleges that the released film "features a character readily identifiable with plaintiff [and] exploits his identity for commercial gain and as such is used for purposes of trade." (Am. Compl. P 58). Plaintiff offers no opposition to defendants' motion to dismiss his § 51 claim. Instead, he volunteers to withdraw this claim if permitted to amend his amended complaint to state a § 51 claim with respect to the pre-release film. Defendants contend that plaintiff's present claim must be dismissed and that any amendment would be futile.
To state a claim under § 51, a plaintiff must prove three elements: (1) defendants used his name, portrait, picture, or voice (2) for purposes of trade or advertising, (3) without his written consent. See Groden v. Random House, Inc., 1994 U.S. Dist. LEXIS 11794, No. 94 Civ. 1074, 1994 WL 455555, at *2 (S.D.N.Y. Aug. 23, 1994) (citing Cohen v. Herbal Concepts, Inc., 63 N.Y.2d 379, 482 N.Y.S.2d 457, 459, 472 N.E.2d 307 (Ct. App. 1984)), aff'd, 61 F.3d 1045 (2d Cir. 1995). These provisions must be construed narrowly. See Rand v. Hearst Corp., 31 A.D.2d 406, 298 N.Y.S.2d 405, 410 (1st Dep't 1969), aff'd, 26 N.Y.2d 806, 309 N.Y.S.2d 348, 257 N.E.2d 895 (Ct. App. 1970). It is clear that Cerasani's present § 51 claim must be dismissed. A § 51 plaintiff must allege the improper use of that individual's "name, portrait, picture or voice," and courts have repeatedly dismissed claims premised on the use of a fictitious rather than actual name. See, e.g., Wojtowicz v. Delacorte Press, 58 A.D.2d 45, 395 N.Y.S.2d 205, 207 (1st Dep't 1977) (depiction of plaintiffs under fictitious names in film "Dog Day Afternoon" fails to state a claim under § 51), aff'd, 43 N.Y.2d 858, 403 N.Y.S.2d 218, 374 N.E.2d 129 (Ct. App. 1978); Waters v. Moore, 70 Misc. 2d 372, 334 N.Y.S.2d 428, 433 (N.Y.Sup.Ct. 1972) (depiction of plaintiff's character under a fictitious name in film "The French Connection" fails to state a § 51 claim, regardless of whether plaintiff's "identity can be ascertained from his involvement with the actual event [depicted in the film] or by reference to external sources"); Springer v. Viking Press, 90 A.D.2d 315, 457 N.Y.S.2d 246, 248 (1st Dep't 1982) (no § 51 cause of action exists even where character in book was based on plaintiff and used her given, but not last, name), aff'd, 60 N.Y.2d 916, 470 N.Y.S.2d 579, 458 N.E.2d 1256 (Ct. App. 1983). Accordingly, even assuming Cerasani is identifiable as "Paulie," his claim under § 51 must be dismissed.
b. Cerasani's Proposed § 51 Claim
Based on the Pre-release Film
Cerasani proposes to amend his amended complaint to add a § 51 claim with respect to the pre-release film, which referred to Cerasani several times by his nickname "Boobie," and a few times by his given name. Defendants contend that such amendment would be futile because he cannot establish a wrongful use of his name "for purposes of trade" as required under § 51. Cerasani claims that the pre-release screening was for such "trade purposes" because it was undertaken to gauge audience reaction to the film "in order to enhance its consumer appeal, and hence its marketability." (Proposed Second Am. Compl. P 22).
A claim with respect to the pre-release film would satisfy the first and third elements of § 51. As to the second element, Cerasani has not argued that his name was misappropriated for "advertising purposes," nor could he. Thus, Cerasani can only state a § 51 claim if his name was misappropriated for "purposes of trade."
The term "purposes of trade" is "not susceptible to ready definition." Davis v. High Society Magazine, Inc., 90 A.D.2d 374, 457 N.Y.S.2d 308, 313 (2d Dep't 1982). The fact that the publication or use of a name or picture is spurred by a profit motive or included to encourage sales or distribution of the publication is a necessary, but hardly a sufficient, ingredient in determining the existence of a trade purpose. See Arrington v. New York Times Co., 55 N.Y.2d 433, 449 N.Y.S.2d 941, 944, 434 N.E.2d 1319 (Ct. App. 1982), cert. denied, 459 U.S. 1146, 74 L. Ed. 2d 994, 103 S. Ct. 787 (1983). Cerasani stumbles on this initial requirement. While there can be no doubt that defendants created the movie to make a profit, defendants screened the pre-release film for a much more limited purpose, namely to obtain a preliminary audience response to the movie to assist the filmmakers in creating a better, final product.
The Appellate Division, Third Department has held that a film screening, without charge, does not constitute a use for "advertising purposes or for the purpose of trade" under § 51. See McGraw v. Watkins, 49 A.D.2d 958, 373 N.Y.S.2d 663, 665 (3d Dep't 1975). In McGraw, a plaintiff sued a filmmaker under § 51 for depicting her in the nude, without her consent, in his film. Plaintiff alleged that the filmmaker had publicized and exhibited the film to many people, that "the purpose of producing it was to enhance the financial interest of defendant and that defendant intends to exhibit the film at the Film Festival at Cannes, France in the hope of obtaining financial backing for its production throughout the United States and Europe." 373 N.Y.S.2d at 664. The court held that, notwithstanding defendant's ultimate profit motive, where plaintiff did not allege "that defendant made a charge for any of the alleged exhibitions of the film . . . . the alleged use of plaintiff's picture by defendant was not for advertising purposes or for the purposes of trade and, therefore, it is not within the statute's prohibitive provisions." Id. at 665.
Like McGraw, Cerasani cannot allege that defendants charged any fee or generated any revenue through the pre-release screening. Any ultimate profit motive was clearly secondary to the creative and editorial purposes of the screening. Thus, the proposed § 51 claim would fail as a matter of law. In light of the futility of an amendment to add such a claim, the motion to amend is denied with respect to this claim as well.
Finally, to the extent plaintiff purports to assert a claim that the film portrays him in a "false light," that claim must be dismissed. New York does not recognize any such false light claim. See, e.g., Howell v. New York Post Co, Inc., 81 N.Y.2d 115, 612 N.E.2d 699, 596 N.Y.S.2d 350, 354 (Ct. App. 1993) (holding that New York law has no common law right of privacy embracing such claims as "false light," as any such privacy right is purely statutory); Freeman v. Johnston, 192 A.D.2d 250, 601 N.Y.S.2d 606, 607 (1st Dep't 1993) (affirming dismissal of "false light" claim because "New York law applies to such a claim and this State does not recognize such a tort"), aff'd, 84 N.Y.2d 52, 614 N.Y.S.2d 377, 637 N.E.2d 268 (Ct. App. 1994).
For the foregoing reasons, defendants' motion to dismiss is granted. Plaintiff's cross-motion for leave to amend his amended complaint is denied on grounds of futility. The Clerk of the Court shall enter judgment for the defendants dismissing the complaint.
Dated: New York, New York
January 15, 1998
United States District Judge