Tyne v. Time Warner Entertainment Co.

Supreme Court of Florida · 2005 · Property

PropertyRight of PublicityCommercial MisappropriationPrivacysection 540.08commercial purposepurposes of tradeadvertising purpose

Facts

After the fishing vessel Andrea Gail was lost at sea in a 1991 storm, Sebastian Junger wrote The Perfect Storm based on reports and interviews, and Warner Bros. later released a motion picture based on the book. The film depicted the lives and deaths of Billy Tyne and Dale Murphy, Sr., and briefly portrayed other family members and individuals involved in this appeal, without seeking their permission or compensating them. The film included dramatized and fabricated elements, although it stated that it was based on a true story and included a disclaimer that dialogue and certain events and characters were fictionalized. The plaintiffs sued under Florida's commercial misappropriation statute, section 540.08, alleging unauthorized use of the decedents' and plaintiffs' names or likenesses.

Issue

Does the phrase "for purposes of trade or for any commercial or advertising purpose" in section 540.08(1), Florida Statutes, include publications such as motion pictures that do not directly promote a product or service? More specifically, does section 540.08 apply to the use of names or likenesses within a dramatized film based on historical events?

Rule

Under section 540.08(1), a use is for a prohibited trade, commercial, or advertising purpose only when the person's name or likeness is used to directly promote a product or service because of the way the use associates that person's identity with something else. The statute does not apply to publications, including motion pictures, that do not directly promote a product or service merely because they are sold for profit.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

A film studio in Miami releases a feature movie about a real warehouse fire in Baltimore. The movie uses the names and dramatized portrayals of several real firefighters without permission, and tickets are sold nationwide for profit.

Under the majority's construction of section 540.08, are the firefighters' families likely to prevail on a statutory claim based solely on the use of the names and likenesses within the film itself?

Explanation. The majority held that section 540.08 reaches only uses of a person's name or likeness that directly promote a product or service. A motion picture or other publication does not become actionable merely because it is sold for profit, even if it dramatizes real events and uses real identities without consent. The key point is that the identity is used within an expressive work, not to endorse or advertise something else. (Derived from Tyne v. Time Warner Entertainment Co. (n.d.).)