A Storm Brews Over Fictionalization: The Tyne Case
Winter 2007
Robert P. LoBue, Carrie A. Syme

Can a movie star sue an author for writing her unauthorized biography?  Can a rock star sue a television show for airing a story on his latest album?  For media and entertainment attorneys, the automatic answer has been, "Of course not."  And a case recently decided by the Florida Supreme Court concerning the partially fictionalized "true-life" motion picture, The Perfect Storm, has confirmed the state of the law after the Eleventh Circuit ominously questioned whether fictionalized accounts might be actionable under that state's fairly typical right of publicity statute.

Although the statutory or common law of every state prohibits the use of a person's name or likeness for commercial or advertising purposes without that person's consent, those laws are commonly understood to be inapplicable to expressive works.  Thus, while it would be impermissible, absent the celebrity's consent, to come up with a product with the name "Brad Pitt Potato Chips," or to state in an advertisement that he endorsed the product, it is not a violation of the right of publicity to make that celebrity the subject of a creative work such as a news article or magazine piece, or even an unauthorized biography.

Courts have arrived at this result by different paths.  Some courts view the cause of action for commercial misappropriation to be inapplicable to expressive works.  Others rely upon statutory exemptions for newsworthy matters or matters of public interest.  Still others conclude that the exemption for expressive works is compelled by the First Amendment.  Whichever path is followed, the result is an accommodation of personal interests with freedom of expression.

But can someone sue for commercial misappropriation when an author uses his or her name and personality not to communicate facts about that person, but to tell a partially invented story?  Can the same celebrity or rock star be made the subject of a television "docudrama" or a book that includes "imagined dialogue" without running afoul of the right of publicity?  The answer has not always been as clear.  A work presented as fact that defames the subject of the work through invented falsehoods is surely actionable.  But a work of fiction – one without any pretense of being "informative" or presenting news – might not be.  For many years, one of the lurking issues in the field of commercial misappropriation has been whether "fictionalization" deprives an expressive work of the protection otherwise afforded.

In 1966, the New York Court of Appeals decided Spahn v. Julian Messner, Inc., 18 N.Y.2d 324, 328-29 ("Spahn I"), and threw doubt on the proposition that fictionalized accounts of a person's life are immune from liability under state misappropriation law.  Plaintiff Warren Spahn, a well-known baseball player, complained about the unauthorized and largely fictitious biography published by the defendant.  Although the biography placed him in a positive light, Spahn complained of its excessive praise, which could lead readers to assume he resembled the romanticized, larger-than life "Spahn" in the book.  The Court of Appeals agreed with Spahn, holding that "[t]he factual reporting of newsworthy persons and events is in the public interest and is protected.  The fictitious is not."  The Court pointed to the "dramatization, imagined dialogue, manipulated chronologies, and fictionalization of events" in the defendant's work as the key to its unprotected status, contrasting these traits with those of a protected "accurate biography."

Although the Spahn I judgment was vacated and remanded a few months later by the United States Supreme Court in light of its decision in Time, Inc. v. Hill, 385 U.S. 374 (1977), the New York court refused to change course.  The Court of Appeals assumed that the actual malice standard of Time, Inc. v. Hill would apply to the Spahn case – meaning that Spahn would have to prove that the defendant published the biography with knowledge of its falsity or with reckless disregard for its truth – but concluded that this standard would easily be met under the facts of the case.  The Court found the biography's "all-pervasive distortions, inaccuracies, invented dialogue, and the narration of happenings out of context," much of which had been admitted by the defendant, to be more than enough proof of actual malice.  Spahn v. Julian Messner, Inc., 21 N.Y.2d 124, 127 (1977) ("Spahn II").

The dissenting judges in Spahn II pointed out that the Court of Appeals' decision would make it impossible for any author to create a fictional work using the name or likeness of a real person, a result that seems incongruous with Constitutional protection of expression.  As a result, in the ensuing years, Spahn was either ignored or confined to its facts by subsequent New York decisions.¹  A typical example of the approach taken by the lower New York courts is the statement in Frosch v. Grosset & Dunlap, Inc., 427 N.Y.S.2d 828, 829 (App. Div. 1980), which dismissed a claim against Norman Mailer's biography of Marilyn Monroe:

"We think it does not matter whether the book is properly described as a biography, a fictional biography, or any other kind of literary work.  It is not for a court to pass on literary categories, or literary judgment.  It is enough that the book is a literary work and not simply a disguised commercial advertisement . . . ."

The proposition that fictionalization somehow deprives an expressive work of the protection against claims of commercial misappropriation also gained little traction outside New York.  The courts have dismissed misappropriation claims against a variety of high-profile productions, including a motion picture docudrama depicting the Black Panther Party, Seale v. Gramercy Pictures, 949 F. Supp. 331 (E.D. Pa. 1996); a television docudrama concerning the Temptations, Ruffin-Steinback v. dePasse, 82 F. Supp.2d 723 (E.D. Mich. 2000); and book and motion picture concerning an event in the life of Agatha Christie, Hicks v. Casablanca Records, 464 F. Supp. 426 (S.D.N.Y. 1978).

More recently, a commercial misappropriation case involving a popular docudrama has been decided by the Florida Supreme Court; this decision confirms that a claim of commercial misappropriation cannot apply to fictionalization in fact-based creative works.  In Tyne v. Time Warner Entertainment Co., 336 F.3d 1286 (11th Cir. 2003), the Eleventh Circuit certified to the Florida Supreme Court the question of whether intentional fictionalization would render an expressive work actionable under a Florida statute which prohibits the unauthorized use of the name or likeness of a person for a commercial or advertising purpose.

The Tyne case is about the 2000 motion picture The Perfect Storm.  That film, based on a best-selling nonfiction work by Sebastian Junger, purports to tell the story of the last voyage of the fishing vessel known as the Andrea Gale.  The Andrea Gale was lost at sea in October 1991 as the result of a rare concurrence of meteorological conditions – a "perfect storm."  Unlike the book, the film presented a concededly dramatized account of the storm, the crew of the Andrea Gale, and friends and relatives of the crew.  The beginning of the film contained the legend "this film is based on a true story," while the closing credits included the disclaimer that "certain events and characters in the film were created for the purpose of fictionalization."

The district court in Tyne granted summary judgment against plaintiffs – family members of the Andrea Gale crew – on their claim that the movie commercially misappropriated the names and likenesses of their deceased relatives.  Relying on a prior Florida appellate court decision, the district court held that plaintiffs presented no evidence that the names and likenesses of their relatives were used "to directly promote" the film rather than used as part of the creative expression of the film.  See Tyne v. Time Warner Entertainment Co., 204 F. Supp.2d 1338, 1342 (M.D. Fla. 2002).

Parts of The Perfect Storm narrative were unavoidably fictionalized because no one survived the Andrea Gale, so no one knows for certain what the crew members experienced after they lost contact.  But the problem goes beyond the somewhat unusual circumstances of that story.  Expressive works may be wholly fictional, may at least strive to be wholly factual, or may be a combination of the two.  There are many well-established literary genres that, to date, have been considered beyond the reach of misappropriation statutes but whose very existence would be called into question by a holding in favor of the plaintiff in Tyne.  For example, the 1995 movie Apollo 13 was a largely factual account of the near-tragic space flight, but surely not every moment of the interaction of the three imperiled astronauts was true-to-life.  The same may undoubtedly be said for innumerable dramatizations of historical persons and events.

Another genre that would be called into question is that of the comic sketch.  Comedy skits portraying real people in fictional situations are common, and exist for the simple reason that we find certain situations funny or entertaining even when we know they never happened and, sometimes, because they never happened.  Indeed, Saturday Night Live could not exist without understanding this fact.  Should President Bush be able to bring a commercial misappropriation claim based on a concededly fictional skit in which he is portrayed by Will Ferrell?

And then, of course, there is the unauthorized biography.  Taking the position of the Tyne plaintiffs to its logical conclusion, the subject of such a biography could bring a misappropriation action based on any assertion that the author got some of the facts wrong or took liberties in recreating historical events, perhaps with invented dialogue.  Given that even the writer of an autobiography will likely be forced to resort to some of these devices in order to make his or her own life's story more lively and entertaining, the double-standard is even more unfair.

The plaintiffs' argument in Tyne was a case of crossed wires between two different doctrines.  Falsification – that is to say, false representation of purported facts – is traditionally the domain of defamation.  In the world of defamation, it is not enough that a person has been subject to a factually false report; in addition, the false statements must be injurious to the person's reputation.  Misappropriation, however, protects the person from the invasion of two other interests:  the right of publicity, which is the right to control the exploitation of one's name or likeness for commercial gain, and an aspect of the right of privacy.  Those interests are invaded by an unauthorized use of name or likeness whether or not the use contains elements of falsity; this renders the issue of whether a televised docudrama or biography is factually accurate a red herring.  Falsity, in short, should be the domain of defamation law, not commercial misappropriation.  Otherwise, we risk destroying the line of demarcation between these torts and allow plaintiffs to use misappropriation as a strict-liability shortcut to defamation damages.

The Eleventh Circuit in Tyne felt that the issue was sufficiently doubtful to require certification to the Florida Supreme Court, a surprising decision that raised more than a few eyebrows in the media and entertainment bars.  The Florida Supreme Court granted review and, several months later, announced its approval of the federal district court's decision to deny the family members' claim.  Tyne v. Time Warner Entertainment Co., 901 So.2d 802 (Fla. 2005).  The Court rested its opinion on the decision in Loft v. Fuller, 408 So.2d 619 (Fla. 4th DCA 1981), which involved a book entitled The Ghost of Flight 401, a nonfictional account of an American Airlines flight that crashed while en route from New York to Miami in 1972.  After the crash, several sightings of the "ghosts" of Flight 401's crew members, including pilot Robert Loft, were reported.  Loft family members sued the book's publisher, arguing that the unauthorized use of Loft's name and likeness constituted commercial appropriation, in violation of the same statute that was at issue in Tyne.  The Loft court ruled that the mere profitability of The Ghost of Flight 401 did not make it a "commercial" use of Loft's personality.  It reasoned that "commercial purpose" must mean a use that directly promotes a product or service.  Otherwise, nearly any book, magazine, or newspaper that used a person's name or likeness would run afoul of the statute, something the First Amendment could not abide.

After recognizing the continuing validity of Loft, the Florida Supreme Court rejected the plaintiffs' claim that The Perfect Storm had commercially misappropriated the name and likeness of their loved ones, focusing on the expressive nature of the film.  "[W]e find that defining the term 'commercial purpose' in [the state misappropriation statute] to apply to motion pictures or similar works raises a fundamental constitutional concern."  Tyne supports the growing conventional wisdom that fictionalization deserves to be distinguished from misappropriation.  Although the world now seems safer for Hollywood directors, unauthorized biographers, and Will Ferrell alike, we will continue to watch these cases with interest.

Endnotes

1. The Court of Appeals has refused to overturn Spahn, but, in recent dicta, has limited that decision to cases involving works "so infected with fiction, dramatization or embellishment that [the work] cannot be said to fulfill the purpose of the newsworthiness exception."  See Messenger v. Gruner + Jahr Printing & Publ'g, 94 N.Y.2d 436, 441 (2000).  This pronouncement, if anything, creates even more uncertainty.  The Court made no attempt to explain how judges should decide which works are "too infected with fiction" to be worthy of protection, or why such judgment of creative expression by the judiciary is proper.