Tyne v. Time Warner Entertainment Co., L.P.

• Decision Date: 09 July 2003
• Docket Number: No. 02-13281.,02-13281.
• Citation: 336 F.3d 1286
• Parties: Erica TYNE, individually and on behalf of Frank William "Billy" Tyne, Jr., Billie-Jo Francis Tyne, individually and on behalf of Frank William "Billy" Tyne, Jr., et al., Plaintiffs-Appellants, v. TIME WARNER ENTERTAINMENT COMPANY, L.P., d.b.a. Warner Bros. Picture, Baltimore/Spring Creek Pictures, L.L.C., a Delaware limited liability company, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

336 F.3d 1286

Erica TYNE, individually and on behalf of Frank William "Billy" Tyne, Jr., Billie-Jo Francis Tyne, individually and on behalf of Frank William "Billy" Tyne, Jr., et al., Plaintiffs-Appellants, v. TIME WARNER ENTERTAINMENT COMPANY, L.P., d.b.a. Warner Bros. Picture, Baltimore/Spring Creek Pictures, L.L.C., a Delaware limited liability company, et al., Defendants-Appellees.

No. 02-13281.

United States Court of Appeals, Eleventh Circuit.

July 9, 2003.

Stephen J. Calvacca, Orlando, FL, W. Edward McLeod, Winter Park, FL, Jon L. Mills, Gainesville, FL, for Plaintiffs-Appellants.

Robert C. Vanderet, O'Melveny & Myers, LLP, Los Angeles, CA, Gregg D. Thomas, James Joseph McGuire, Holland & Knight, LLP, Tampa, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before BARKETT, MARCUS and ALARCÓN^*, Circuit Judges.

PER CURIAM:

Erica Tyne, Billie-Jo Francis Tyne, Dale R. Murphy, Jr.,¹ Debra Tigue, and Douglas Kosko, (collectively, the "Tyne Plaintiffs") appeal an adverse summary judgment granted to Time Warner Entertainment Co., d/b/a Warner Bros. Pictures, Baltimore/Spring Creek Pictures, and Radiant Productions (collectively, "Warner Bros.") on their action for unauthorized commercial misappropriation and invasion of privacy concerning the motion picture The Perfect Storm ("the Picture"). The Tyne Plaintiffs contend that the district court erred in finding that Florida's commercial misappropriation statute, see Fla. Stat. § 540.08 (1998), does not extend to this case. In addition, the Tyne children, alone, challenge the district court's grant of summary judgment to Warner Bros. on their claim that the Picture's portrayal of their father was so egregiously false and offensive as to allow them to bring a false light invasion of privacy claim, usually non-descendible, on their own behalf.

Because we are unsure of the proper reach of Fla. Stat. § 540.08 in this context, we certify this question to the Florida Supreme Court.

I. BACKGROUND

In October, 1991, a rare confluence of meteorological events led to a "massively powerful" weather system off the New England coast. The fishing vessel known as the Andrea Gail was caught in this storm and lost at sea. All six of the crewmembers on board the Andrea Gail, including Billy Tyne and Dale Murphy, Sr., were presumed to have been killed. Newspaper and television reports extensively chronicled the storm and its impact. Based on these reports, and personal interviews with meteorologists, local fishermen, and family members, Sebastian Junger penned a book, entitled The Perfect Storm: A True Story of Men Against the Sea, recounting the storm and the last voyage of the Andrea Gail and its crew. The book was published in 1997.

That same year, Warner Bros. purchased from Junger and his publisher the rights to produce a motion picture based on the book. Warner Bros. released the film, entitled The Perfect Storm, for public consumption in 2000. The Picture depicted the lives and deaths of Billy Tyne and Dale Murphy, Sr., who were main characters in the film. It also included brief portrayals of each individual that is a party to this appeal. Nonetheless, Warner Bros. neither sought permission from the individuals depicted in the picture nor compensated them in any manner.

Unlike the book, the Picture presented a concededly dramatized account of both the storm and the crew of the Andrea Gail. For example, the main protagonist in the Picture, Billy Tyne, was portrayed as a down-and-out swordboat captain who was obsessed with the next big catch. In one scene, the Picture relates an admittedly fabricated depiction of Tyne berating his crew for wanting to return to port in Gloucester, Massachusetts. Warner Bros. took additional liberties with the land-based interpersonal relationships between the crewmembers and their families.

While the Picture did not hold itself out as factually accurate, it did indicate at the beginning of the film that "THIS FILM IS BASED ON A TRUE STORY." A disclaimer inserted during the closing credits elaborated on this point with the following statement: "This film is based on actual historical events contained in `The Perfect Storm' by Sebastian Junger. Dialogue and certain events and characters in the film were created for the purpose of fictionalization."

On August 24, 2000, the Tyne and Murphy children, along with Tigue and Kosko, filed suit against Warner Bros. seeking recompense under Florida's commercial misappropriation law and for common law false light invasion of privacy. In a May 9, 2002 Order, the district court granted Warner Bros.'s motion for summary judgment on all counts. The court found that (A) the term "commercial purpose" in Fla. Stat. § 540.08 was not meant to extend the statute's reach to the use of an individual's name or likeness in an expressive medium, and (B) the Picture did not fall into the narrow "relational right of privacy" exception to the general rule that false light claims are non-descendible.

II. DISCUSSION

A. Commercial Purpose

The Tyne Plaintiffs first allege error in the district court's determination that Loft v. Fuller, 408 So.2d 619, 622 (Fla.Dist.Ct. App. 4th Dist.1981), controls this case and precludes the application of § 540.08 to the facts herein.

Section 540.08 of the Florida Statutes prohibits the unauthorized use of a person's² name or likeness for "trade, commercial, or advertising purposes." See Valentine v. C.B.S., Inc., 698 F.2d 430, 433 (11th Cir.1983). In pertinent part, the statute reads as follows:

(1) No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use given by:

(a) Such person; or

(b) Any other person, firm or corporation authorized in writing by such person to license the commercial use of her or his name or likeness; or

(c) If such person is deceased, any person, firm or corporation authorized in writing to license the commercial use of her or his name or likeness, or if no person, firm or corporation is so authorized, then by any one from among a class composed of her or his surviving spouse and surviving children.

(2) In the event the consent required in subsection (1) is not obtained, the person whose name, portrait, photograph, or other likeness is so used, or any person, firm, or corporation authorized by such person in writing to license the commercial use of her or his name or likeness, or, if the person whose likeness is used is deceased, any person, firm, or corporation having the right to give such consent, as provided hereinabove, may bring an action to enjoin such unauthorized publication, printing, display or other public use, and to recover damages for any loss or injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages.

(3) The provisions of this section shall not apply to:

(a) The publication, printing, display, or use of the name or likeness of any person in any newspaper, magazine, book, news broadcast or telecast, or other news medium or publication as part of any bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes;

(b) The use of such name, portrait, photograph, or other likeness in connection with the resale or other distribution of literary, musical, or artistic productions or other articles of merchandise or property where such person has consented to the use of her or his name, portrait, photograph, or likeness on or in connection with the initial sale or distribution thereof.

Fla. Stat. § 540.08.

The issue before this Court is whether the Picture's admittedly unauthorized use of the Tyne Plaintiffs', and their relatives', names and likenesses was "for trade, commercial, or advertising purposes," as that phrase is used in § 540.08. Id. This is a similar issue to the one presented in Loft v. Fuller. See Loft, 408 So.2d at 622. In that case, the family of decedent Robert Loft sued the author of a non-fiction book entitled The Ghost of Flight 401. Id. Mr. Loft had been the captain of Eastern Airlines Flight 401 en route from New York to Miami when it crashed into the Florida Everglades on December 28, 1972. Id. In addition to the extensive coverage that the crash itself received, in the succeeding months numerous media outlets reported that people on several subsequent Eastern Airlines flights claimed to have seen apparitions of Flight 401 crewmembers, including Mr. Loft. Id. In 1976, author John Fuller published Flight 401, a nonfiction account of both the crash and the reported poltergeists. A motion picture under the same title was released in 1978. Id. Both portrayed Mr. Loft as a ghost in accordance with the newspaper accounts. The Lofts argued that the unauthorized use of the decedent's name (in the book and movie) and likeness (in the movie) violated Fla. Stat. § 540.08. Id. The Loft court disagreed and affirmed the trial court's dismissal of the Lofts' complaint with prejudice.

In reaching its conclusion, the Loft court held that § 540.08 "is designed to prevent the unauthorized use of a name to directly promote the product or service of the publisher." Id. at 622-23 (emphasis supplied). The court found that the term "commercial," as employed in § 540.08, "was [not] meant to be construed to bar the use of people's names in [any] sweeping fashion." Id. at 623. Rather, § 540.08 protects individuals from the unauthorized use of their names or likenesses solely in the context of an advertisement or promotion. See id. Thus, the "publication [of a person's name or likeness] is harmful not simply because it is included in a publication that is sold for a profit, but rather because of the way it...