## Facts

- In 1991, the fishing vessel *Andrea Gail* was lost at sea during a severe storm; all six crew members, including Captain Billy Tyne and Dale Murphy, Sr., were presumed dead.
- The storm and the vessel’s disappearance received extensive media coverage.
- Author Sebastian Junger published *The Perfect Storm: A True Story of Men Against the Sea* (1997), based on reporting and interviews.
- Time Warner acquired rights to produce a motion picture based on the book and released *The Perfect Storm*, a dramatized and heavily fictionalized depiction of events leading up to the *Andrea Gail*’s disappearance.
- Surviving family members alleged the film used the decedents’ names and likenesses without consent or compensation and portrayed them in inaccurate, offensive ways.
- Plaintiffs sued under Florida Statutes § 540.08 (unauthorized commercial use of name or likeness) and also asserted false light invasion of privacy based on the fictionalization.
- A federal district court granted summary judgment to Time Warner on the § 540.08 claim; the Eleventh Circuit certified a question to the Florida Supreme Court on the statute’s scope as applied to a motion picture.

## Issues

1. Whether Florida Statutes § 540.08’s prohibition on using a person’s name or likeness “for purposes of trade or for any commercial or advertising purpose” applies to a profit-making motion picture that depicts real persons in a dramatized narrative.
2. Whether § 540.08 can be used to remedy alleged false light harm arising from fictionalized portrayals within an expressive work.

## Decision

- The Florida Supreme Court answered the certified question in the negative.
- The Court held that § 540.08 does not apply to expressive works such as motion pictures, books, or similar storytelling media, even when produced and sold for profit.
- The Court construed “for purposes of trade or for any commercial or advertising purpose” to reach uses that directly promote or advertise goods, services, or a business, not the content of an expressive work itself.
- The Court explained that § 540.08 is a commercial misappropriation statute and does not create a false light or defamation remedy for fictionalization within expressive works.
- The ruling supported the district court’s disposition on the § 540.08 claim and returned the case to the Eleventh Circuit for further proceedings consistent with this interpretation.

## Legal Principles

- Florida Statutes § 540.08 is limited to unauthorized uses of a name or likeness in advertising or promotional contexts that directly market or sell goods, services, or a business.
- The depiction of real persons within an expressive work (including dramatized films) is not a use “for purposes of trade” within § 540.08 merely because the work is sold for profit.
- Statutory interpretation favoring a narrow reading of § 540.08 avoids converting the statute into a general vehicle to control speech about real events and persons.
- Claims based on alleged falsity or offensiveness in an expressive portrayal must be pursued, if at all, under other tort doctrines; § 540.08 does not supply that cause of action.

## Conclusion

The Florida Supreme Court confined § 540.08 to identity uses in advertising or promotion and held that a motion picture’s dramatized portrayal of real individuals, without more, does not fall within the statute’s ban on commercial misappropriation.


Tyne v. Time Warner Ent. Co., 901 So. 2d 802 (Fla. 2005)