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Louisiana State Univ.

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Friday, April 22, 2005

Florida Supreme Court Finds in Favor of Time-Warner in Perfect Storm Case

The Florida Supreme Court has ruled in favor of Time-Warner in a question of commercial misappropriation under a Florida Statute (section 540.08). Plaintiffs had brought suit alleging that the film The Perfect Storm, based on the book by Sebastian Junger, asking for "recompense". They also sued for common law false light invasion of privacy. The District Court granted the defendants' motion for summary judgment on all claims. On appeal, the Eleventh Circuit certified the question under review to the Florida Supreme Court.

The Florida court restated the question as follows: "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?" It considered a prior case, Loft v. Fuller (Fla. 4th DCA 1981), in which a Florida court first construed the meaning of the statute, and which continues to be the interpretation applied. "In our view, section 540.08, by prohibiting the use of one's name or likeness for trade, commercial or advertising purposes, is designed to prevent the unauthorized use of a name to directly promote the product or service of the publisher. Thus, the publication is harmful not simply because it is included in a publication that is sold for a profit, but rather because of the way it associates the individual's name or his personality with something else. Such is not the case here."

The Court concluded by finding in favor of the appellees. Read the opinion here. Read the amicus brief filed by Entertainment, Arts and Sports Law Section of the Florida Bar here. Jordan Tabach-Bank has published a case note in the Loyola of Los Angeles Entertainment Law Review on the proceeding: read Missing the Right of Publicity Boat here.

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