The producers of Hustlers are asking a New York federal judge to toss a lawsuit filed by the real-life adult entertainer who inspired Jennifer Lopez's character in the film, arguing she can't succeed on her claims that the film used her likeness without permission and damaged her reputation.
Samantha Barbash in January sued STX, along with Gloria Sanchez Productions and Lopez's Nuyorican Productions. She claims the film, which is based on a 2015 New York Magazine article centered on her experience working in gentlemen's clubs, exploited her likeness without her permission and defamed her by showing the character using and mixing drugs in the home that she shared with her child.
The defendants on Wednesday filed a motion to dismiss the complaint.
"Plaintiff worked for several years as an adult entertainer, until she was implicated in, and later pleaded guilty to participating in, a widely-publicized scheme to drug and steal from men who patronized the clubs where she and her co-conspirators worked," writes attorney Jacquelyn Schell of Ballard Spahr in the filing, which is posted below. "This lawsuit is Plaintiff's most recent attempt to capitalize on her involvement in this scheme. New York law does not recognize a common law claim for right of privacy, but that is effectively what Plaintiff seeks — to either profit from or control the narrative around a fictional story inspired by events in which she was involved."
Schell argues the state civil rights laws she's relying on for her invasion of privacy claims don't apply because they preclude using "the name, portrait or picture of any living person” for purposes of trade without advance written consent and allow individuals to bring a civil suit if their “name, portrait, picture or voice” is used without such consent. Lopez's character is named Ramona, Barbash is never mentioned by name and her image isn't used in the film or any promotional materials. Plus, defendants argue, Hustlers is a work of fiction about a matter of public interest and therefore doesn't qualify as advertising or trade under the statute.
"The law simply does not allow Plaintiff to sue over an unauthorized dramatization of her 'story' or characterizations of her personality, even if Ramona evokes in some viewers’ minds parallels to Plaintiff," writes Schell.
As for the defamation claim, defendants argue that even if the average viewer understood Hustlers to be about Barbash, it's not defamatory because the events depicted in the film are substantially true. Further, they argue, Barbash is a limited-purpose public figure and would have to prove actual malice to succeed on that claim.
"Defendants do not deny that Plaintiff’s story was part of the inspiration for the movie, but Plaintiff has not plausibly alleged that a reasonable viewer would take the one allegedly defamatory statement — the scene in which the character Ramona is 'using and manufacturing illegal substances in her home' — as a factual assertion about her," writes Schell. "[W]hether the mixing or dilution of those drugs took place in the women's homes or elsewhere is a red herring — nothing in the movie suggests that making these drug cocktails occurred in front of children or had any direct adverse effect on children."
Further, Schell argues, "[e]ven if the Court were to take as true her conclusory allegation that she has suffered harm to her reputation, there is no plausible reason alleged (and no logical reason to believe) that one scene in a fictional movie depicting a character inspired by Plaintiff mixing drugs — rather than Plaintiff’s participation in and felony plea to a criminal conspiracy — was the cause of that harm."
The defense team also includes Louis Petrich, who successfully defended filmmakers in a defamation suit sparked by The Wolf of Wall Street.
