Tyne v. Time Warner Entertainment Co.

• Citation: 901 So.2d 802
• Decision Date: 21 April 2005
• Docket Number: No. SC03-1251.,SC03-1251.
• Parties: Erica TYNE, etc., et al., Appellants, v. TIME WARNER ENTERTAINMENT COMPANY, L.P., etc., et al., Appellees.
• Court: Florida Supreme Court

901 So.2d 802

Erica TYNE, etc., et al., Appellants,
v.
TIME WARNER ENTERTAINMENT COMPANY, L.P., etc., et al., Appellees

No. SC03-1251.

Supreme Court of Florida.

April 21, 2005.

901 So.2d 803

Stephen J. Calvacca of Law Office of Calvacca Moran, and W. Edward McLeod, Jr., Winter Park, FL; Jon J. Mills and Timothy McLendon, Gainesville, FL, for Appellant

Gregg D. Thomas and James J. McGuire of Holland and Knight, Tampa, FL, for Appellee.

John F. Bradley, Stephen M. Carlisle, Julee L. Milham, Robert A. McNeely, and Jamin D. Rubenstein, Fort Lauderdale on behalf of the Entertainment, Arts and Sports Law Section of the Florida Bar; Douglas E. Mirell and Jean-Paul Jassy of Loeb and Loeb, LLP, Los Angeles, CA, on behalf of the Motion Picture Association of America, Inc., Association of American Publishers, Inc., Freedom to Read Foundation, American Booksellers for Free Expression, Publishers Marketing Association, Video Software Dealers Association, Magazine Publishers Association and Comic Book Legal Defense Fund; and David S. Bralow, Senior Counsel, Tribune Company, Orlando, FL, George Freeman, Associate General Counsel, New York Times Company, New York, NY, and Charles A. Carlson of Barnett Bolt Kirkwood and Long, Tampa, FL, on behalf of the Florida Press Association, the First Amendment Foundation, the Florida Association of Broadcasters, Orlando Sentinel Communications, Sun-Sentinel Company, and their parent, Tribune Company, the New York Times Regional Newspaper, on behalf of its 14 daily newspapers, including The (Lakeland) Ledger, Sarasota Herald-Tribune, (Ocala) Star-Banner, and The Gainesville Sun, and Media General Operations, Inc., publisher of The Tampa Tribune, Highlands Today, Hernando Today, and the Jackson County Floridan, and owner of WFLA-TV Channel 8, WJWB-TV Channel 17, and WMBB Channel 13 (collectively referred to as "Florida Media Organizations"), As Amici Curiae.

WELLS, J.

We have for review a question of Florida law certified by the United States Eleventh Circuit Court of Appeals that is determinative of a cause pending in that court and for which there appears to be no controlling precedent. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const.

The pertinent facts of this case, as set forth by the Eleventh Circuit, are as follows:¹

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 fisherman, 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.

901 So.2d 804

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 the 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. [in the United States District Court for the Middle District of Florida] seeking recompense under Florida's commercial misappropriation law [section 540.08, Florida Statutes (2000)]² and for common law false light invasion of privacy.

901 So.2d 805

Tyne v. Time Warner Entertainment Co., L.P., 336 F.3d 1286, 1288-89 (11th Cir.2003)

Appellees thereafter filed a motion for summary judgment, asserting that there were no genuine issues of material fact to be resolved by a jury. The district court granted the motion of appellees on all claims. Tyne v. Time Warner Entertainment Co., L.P., 204 F.Supp.2d 1338 (M.D.Fla.2002).

With respect to the appellants' claim of commercial misappropriation under section 540.08, Florida Statutes, the district court held that section 540.08 applies only to actions in which a person's name or likeness is used for commercial trade or advertising purposes. "[M]erely using an individual's name or likeness in a publication is not actionable under § 540.08. A motion picture is not, therefore, in and of itself, a `commercial purpose.'" 204 F.Supp.2d at 1341. The court based this decision on the Fourth District Court of Appeal's decision in Loft v. Fuller, 408 So.2d 619 (Fla. 4th DCA 1981). The federal district court further concluded that the promotion and advertising of the picture did not constitute a commercial purpose. In so holding, the court quoted section 47 of the Restatement (Third) of Unfair Competition (1995), which excludes the use of a person's identity in "entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses." Because the appellants failed to raise a genuine issue of material fact as to whether the use of the decedents' or plaintiffs' likenesses were used for the purposes of trade or a commercial purpose, the court granted summary judgment on this claim. Tyne, 204 F.Supp.2d at 1342.

The appellants appealed the district court's decision to the Eleventh Circuit Court of Appeals, arguing that the district court erred in finding that section 540.08 did not apply to the facts of this case. The Eleventh Circuit recognized that this issue is similar to that presented in Loft, as held by the district court, but concluded that it was uncertain as to the scope of section 540.08 and the applicability of Loft to these circumstances. The court thus certified the following question to this Court:

TO WHAT EXTENT DOES SECTION 540.08 OF THE FLORIDA STATUTES APPLY TO THE FACTS OF THIS CASE?

Tyne, 336 F.3d at 1291. This Court granted review to address the certified question. As the Eleventh Circuit stated we could,

901 So.2d 806

we rephrase the certified question to the specific issue that we conclude is presented by this case

DOES THE PHRASE "FOR PURPOSES OF TRADE OR FOR ANY COMMERCIAL OR ADVERTISING PURPOSE" IN SECTION 540.08(1), FLORIDA STATUTES, INCLUDE PUBLICATIONS WHICH DO NOT DIRECTLY PROMOTE A PRODUCT OR SERVICE?

ANALYSIS

The question before this Court is a narrow one. As noted by the federal courts, the Fourth District Court of Appeal considered the applicability of section 540.08, Florida Statutes, to a publication which did not directly promote a product or service, but this Court has not directly addressed this question.

In Loft, Dorothy Loft and her two children brought an action for, among other things, violation of section 540.08 for the alleged unauthorized publication of the name and likeness of the Lofts' deceased husband and father, Robert Loft. Robert Loft had been the captain of an Eastern Airlines flight that crashed while en route from New York to Miami in 1972. The crash was followed by reports of the appearance of apparitions of the flight's crew members, including Robert Loft, on subsequent flights. Subsequent to the press stories, The Ghost of Flight 401 was published in 1976. The book was a nonfictionalized account by the author of his investigation of the reports. A movie was also made based on this book. Loft, 408 So.2d at 620.

The Fourth District held as follows:

In our view, section 540.08, by prohibiting the

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