When Warner Bros. Pictures produced "The Perfect Storm" about a fishing vessel that was lost in a rare, powerful weather system off the New England coast, it did not ask permission -- or compensate --


When Warner Bros. Pictures produced "The Perfect Storm" about a fishing vessel that was lost in a rare, powerful weather system off the New England coast, it did not ask permission -- or compensate -- individuals depicted in the film. Relatives of two fishermen lost at sea and a former crew member claimed that the movie's producers and distributors violated Florida law that forbids unauthorized commercial appropriation of names and likenesses. They also claimed that the companies invaded their common law rights to privacy.

While the federal Eleventh Circuit Court of Appeals in 2003 denied the invasion of privacy claims, it certified to Florida's highest state court the question of whether the state's commercial misappropriation statute applied to the facts of this case. The Supreme Court of Florida answered the question on April 21 in the negative, holding that the phrase "commercial purpose" in the misappropriation statute does not apply to a motion picture that does not directly promote a product or service.

The following is a summary of the state court's opinion.

Factual Background: Sebastian Junger wrote a book entitled "The Perfect Storm: A True Story of Men Against the Sea," recounting the October 1991 storm and the last voyage of the fishing vessel Andrea Gail and its crew. It was published in 1997, and Warner Bros. purchased rights to produce a motion picture based on the book. The film was released in 2000.

Unlike the book, the movie presented a dramatized account of the storm and the crew. A statement at the beginning of the film indicated: "This Film Is Based On A True Story." A disclaimer inserted during the closing credits sated: "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."

The main characters were captain Billy Tyne and crewman Dale Murphy Sr. The film depicted their lives and deaths, portraying Tyne as a "down-and-out swordboat captain who was obsessed with the next big catch." In one scene, the film related a fabricated depiction of Tyne berating his crew for wanting to return to port in Massachusetts. Warner Bros. "took additional liberties with the land-based interpersonal relationships between the crew members and their families," the court noted.

On Aug. 24, 2000, the two surviving children and former spouse of decedent Frank William "Billy" Tyne Jr., the surviving child and former spouse of decedent Dale Murphy and a former crew member of the Andrea Gail filed suit in the U.S. District Court for the Middle District of Florida in Orlando against Time Warner Entertainment Co. d/b/a Warner Bros. Pictures, Baltimore/Spring Creek Pictures and Radiant Productions.

The defendants filed a motion for summary judgment, which the District Court on May 9, 2002 granted (204 F.Supp.2d 1338). The Eleventh Circuit Court of Appeals on July 9, 2003 affirmed the decision on the claim for false light invasion of privacy and certified the question on commercial misappropriation to the Florida court (336 F.3d 1286).

Florida Misappropriation Statute: Florida's commercial misappropriation statute, Florida Statutes (2000), section 540.09, states in part:

"(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 ... or [certain other parties] may bring an action to enjoin such unauthorized ... use, and to recover damages ... 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 ... use of the name or likeness ... 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; or
(c) Any photograph of a person solely as a member of the public and where such person is not named or otherwise identified in or in connection with the use of such photograph.
[additional sections not relevant to this summary]
(6) The remedies provided for in this section shall be in addition to and not in limitation of the remedies and rights of any person under the common law against the invasion of her or his privacy."

The Holding: The court rephrased the federal court's question, which specifically referred to the facts in this case, to instead be the following general question: "Does the phrase 'for purposes of trade or for any commercial or advertising purpose' in [the statute] include publications which do not directly promote a product or service?"

As rephrased, the court held that the "commercial purpose" used in the statute does not apply to publications, including motion pictures, which do not directly promote a product or service.

The court found support in a 1981 case from the Fourth District Court of Appeals. That court held that the statute was designed to prevent the unauthorized use of a name to "directly promote the product or service of the publisher." It was not intended to prevent a publication from including the name or likeness, but from associating the name or personality "with something else." While at least one purpose of an author and publisher in releasing a publication is to make money through sales of copies -- making the publication commercial in this sense -- this does not amount to the kind of commercial exploitation prohibited by the statute, the earlier opinion stated.

Other cases were included in the opinion to bolster support for this holding. In 1983, the Eleventh Circuit Court of Appeals held that Bob Dylan and Jacques Levy did not violate the statute when they wrote a song that depicted the murder trial of prizefighter Rubin "Hurricane" Carter. The ballad did not commercially exploit anyone's name since the name was not used to directly promote a product or services.

The District Court for the Middle District of Florida in 2002 also held that a defendants' display of a woman/plaintiff exposing her breasts in a "Girls Gone Wild" video did not violate the statute because her image and likeness were not used to promote a product or service. The court held that names, likenesses and other indicia of a person's identity are used for the purposes of trade "if they are used in advertising the user's goods or services, or are placed on merchandise marketed by the user, or are used in connection with services rendered by the user."

Use for the purpose of trade does not violate the statute unless it is "used solely to attract attention to the work that is not related to the identified person," the District Court wrote. While the woman's image and likeness were used to sell copies of the video created solely for entertainment purposes, her image and likeness were never associated with a product or service unrelated to that work. "In both the video and its commercial advertisements, Lane is never shown endorsing or promoting a product, but rather, as part of an expressive work in which she voluntarily participated."

After reviewing these and other cases, the Florida court also agreed with Warner Bros. that promoting copies of the film did not amount to using names and likenesses for a commercial purpose. The resale exemption from the statute, the court wrote, permits a party to resell the artistic work. It also permits retailers and other distributors of the work to promote and advertise their products and establishments by using the names and likenesses of the artists and celebrities whose works they are selling.

The court also noted that the Florida statute was enacted in 1967. The state legislature has not amended the statute in response to any past legal decision. Such inaction may be viewed as legislative acceptance or approval of the judicial construction of the statute.

Finally, the court stated that the First Amendment provides greater protection to works of artistic expression -- such as movies, plays and songs -- than it provides to pure "commercial speech." Expressive works protected by the First Amendment are not commercial speech, i.e., speech that merely advertises a product or service for business purposes.

Based on the court's analysis, the court stated that the term "commercial" in the commercial misappropriation and right of publicity context is limited to the promotion of a product or service.

The court concluded by noting that this decision "does not foreclose any viable claim that [the plaintiffs] may have under any other statute or under the common law."

Case:Tyne et al. v. Time Warner Entertainment Co. LP d/b/a Warner Bros. Pictures et al.
Court: Florida Supreme Court, Opinion written by Judge J. Wells, Concurred by Judges Pariente, Anstead, Quince, Cantero and Bell, Judge Lewis dissented, case no. SC03-1251, April 21, 2005; Eleventh Circuit Court of Appeals, case no. 02-13281
Counsel for Families/Plaintiffs: Stephen Calvacca with Calvacca Moran, Orlando, Fla.; W. Edward McLeod Jr, Winter Park, Fla.; Jon J. Mills and Timothy McLendon, Gainesville, Fla.
Counsel for Company Defendants: Gregg D. Thomas, James J. McGuire with Holland and Knight, Tampa, Fla.