Barbash v. STX Financing, LLC
- Denise Cote
- 1:20-cv-00123
- U.S. District Court · Southern District of New York
- 18
In Barbash v. STX Financing, Judge Cote granted defendants’ motion to dismiss claims over Hustlers’ portrayal of Barbash.
Samantha Barbash’s privacy and defamation claims were dismissed; STX Financing, LLC, Gloria Sanchez Productions, Inc., Nuyorican Productions, Inc., and Pole Sisters, LLC obtained judgment in their favor.
What happened
In Barbash v. STX Financing, LLC, Samantha Barbash sued the producers and distributors of Hustlers for using her identity and character without permission and for defamation. She alleged that the film falsely portrayed her as developing, making, possessing, using, and administering drugs, and as indifferent to others’ welfare.
The defendants argued that New York’s privacy law did not cover the alleged use of Barbash’s likeness and character, and that her defamation allegations failed because several portrayals were substantially true or opinions. They also argued that Barbash was a limited-purpose public figure who had to plausibly allege that the defendants acted with deliberate or reckless disregard for the truth.
Judge Denise Cote granted the defendants’ motion to dismiss. She dismissed the privacy claim because the complaint alleged use of Barbash’s likeness and character, not her name, portrait, picture, or voice. She also dismissed the defamation claim in its entirety because Barbash did not adequately plead the required level of fault, and the court ordered judgment for the defendants and closed the case.
The detailed version
- Barbash v. STX Financing, LLC · No. 1:20-cv-00123
- Denise Cote
- Nov. 10, 2020
Background
Samantha Barbash sued STX Financing, LLC, doing business as STX Entertainment, and Gloria Sanchez Productions, Inc., Nuyorican Productions, Inc., and Pole Sisters, LLC. She alleged that the defendants produced and distributed the film Hustlers, which was inspired by a 2015 New York Magazine article about the criminal scheme to which Barbash pleaded guilty. According to the amended complaint, the film portrayed Barbash as the leader of a group of adult dancers who drugged patrons and stole money from them. Barbash alleged that the defendants used her identity, likeness, and character in the film and its marketing without her consent.
The amended complaint asserted two claims: a claim under New York Civil Rights Law §§ 50 and 51 for unauthorized commercial use of her personality, and a defamation claim based on six statements or scenes in the film. Barbash sought damages and an injunction. The defendants moved to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not allege enough facts to state a legally plausible claim.
The opinion notes an inconsistency about the year of Barbash’s guilty plea: the amended complaint stated that she pleaded guilty in 2017, while the plea transcript indicated that the plea occurred in 2015. The court considered the transcript, which the parties agreed could be considered in deciding the motion.
New York Privacy Claim
New York Civil Rights Law § 50 prohibits using a living person’s name, portrait, picture, or voice for advertising or trade purposes without consent, and § 51 provides a private lawsuit for such a violation. The court explained that the statutes are narrowly limited to those forms of commercial appropriation.
The amended complaint did not allege that the film or its marketing used Barbash’s name, portrait, picture, or voice. Instead, it alleged that the defendants used her “likeness and character.” The court held that this allegation was insufficient under §§ 50 and 51 and dismissed the privacy claim.
Defamation Claim
Under New York law, a defamation claim requires a defamatory factual statement concerning the plaintiff, publication to another person, fault, falsity, and either special damages or a statement actionable without proof of special damages.
The court held that Barbash adequately alleged that the challenged statements concerned her. The amended complaint alleged that the defendants promoted the film by connecting its character to Barbash’s real-life events, guilty plea, and legal proceedings.
The amended complaint identified six allegedly defamatory statements or scenes: that Barbash developed the drug recipe used in the crimes; manufactured illegal substances at home; possessed illegal drugs; used illegal drugs; drugged people without their knowledge or consent; and was cold and indifferent to others’ well-being.
The court concluded that the third and fifth allegations—possession of drugs and drugging people without their consent—were completely or substantially true in light of Barbash’s guilty plea and the surrounding record. The court assumed, without deciding, that the first and second allegations about developing and manufacturing the drugs were not substantially true. It also concluded that the sixth characterization was an opinion rather than a provably false factual statement, and that the amended complaint did not adequately plead its falsity.
The court separately held that Barbash was a limited-purpose public figure for this dispute. It relied on her guilty plea in open court, public statements about the events, interviews with reporters, and publication of a memoir. A limited-purpose public figure must plausibly allege actual malice—knowledge that a statement was false or reckless disregard for whether it was false. The court held that the amended complaint did not plead actual malice concerning the portrayals that Barbash developed, manufactured, or used illegal drugs. The court therefore granted the motion to dismiss the defamation claim in its entirety.
Disposition
Judge Denise Cote granted the defendants’ May 29, 2020 motion to dismiss. The Clerk of Court was directed to enter judgment for the defendants and close the case. The opinion does not state that the dismissal was with or without prejudice.
Read the full 18-page opinion on CourtListener, the free public archive maintained by the Free Law Project.