"Perfect Storm" stirs question of state's privacy law

"Perfect Storm" stirs question of state's privacy law

• A court rejected the claim that the movie violated the privacy rights of the main character's children, but asked Florida's top court to clarify whether the movie's producer should have gained permission to portray the lives of characters lost at sea and their family members waiting on the shore.

July 14, 2003 -- A movie's fictionalized portrayal of a sea captain so obsessed with the next big catch that his fishing vessel becomes lost in a storm is not outrageous enough to allow his survivors to pursue an invasion of privacy claim against the movie's producer, a U.S. Court of Appeals panel in Atlanta (11th Cir.) ruled July 9.

The court also has asked the Florida Supreme Court to clarify whether the state's law for unauthorized use of a person's likeness for commercial purposes extends to use in a motion picture. The actions by surviving family members of the fishing boat's crew stem from "The Perfect Storm," a 2000 movie produced by Warner Brothers Pictures. The movie is based on a book, which recounted the story of a fishing vessel that disappeared off the New England coast during a rare and extremely powerful weather system.

A three-judge panel of the appeals court upheld summary judgment in favor of Warner Brothers on the invasion of privacy claim, but said it has substantial doubt about the scope of the state's law that criminalizes misuse of a person's likeness for commercial purposes. The lower court had rejected both of the plaintiffs' claims.

The two children of deceased ship captain Billy Tyne claim the movie portrays their father in a false light and violates their privacy. Although typically false light invasion of privacy lawsuits can be brought only by a living person whose privacy has been violated, the children, who had moved to Florida with their mother, asked the court to recognize a relational-right exception and allow the cause of action to survive their father's death because the depiction was egregious. The court declined.

"The Florida courts have made it plain that this exception was not crafted to provide a derivative cause of action for minor technical inaccuracies, or even major ones," the court said.

Warner Brothers bought the rights to produce a motion picture based on the book, and indicated at the movie's start "this film is based on a true story." The production company did not seek permission from the individuals depicted in the book nor compensate them in any manner.

Florida law prohibits the unauthorized use of a person's name or likeness for "trade, commercial or advertising purposes," but creates an exception for the news media for non-advertising purposes. The district court held that use in a movie did not fall within the scope of the misappropriation law because it wasn't commercial.

But the appeals court said the law is unclear in consideration of a 1981 decision by a Florida state appeals court. That court said the law only applied to "promotional and advertising" uses, while the statute's text treats commercial or advertising purposes separately. The plaintiffs also claim that because Warner Brothers intentionally fabricated parts of the movie, it has no First Amendment protection for representations the company knew were false.

The appeals court sent a certified question to the Florida Supreme Court, asking the court to what extent the statute applied to the facts of the case.

(Tyne v. Time Warner Entertainment Company) -- KH

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