Florida/Georgia Personal Injury & Workers Compensation

...f any other modern device for recording or reproducing scenes or sounds." Brandeis was later appointed to the United States Supreme Court and served as a justice from 1916 to 1939. [6] In Florida, the tort of commercial appropriation is set forth in section 540.08, Florida Statutes (2007)....

... Thais Cardoso Almeida brought this action against Amazon.com, Inc. (“Amazon”) for displaying her image on its websites in furtherance of its sale of the book Anjos Proibidos. Almeida asserted claims against Amazon pursuant to Fla. Stat. § 540.08 (West 2006), for civil theft pursuant to Fla....

...§ 772.11 (West 2006), and under Florida’s common law doctrine of invasion of privacy. The district court granted summary judgment in favor of Amazon as to all of Almeida’s claims. The district court held that Almeida’s right of publicity claim under § 540.08 and common law is preempted by the Communications Decency Act of 1996 (“CDA”), 47 U.S.C....

...liked Fabio. He’s super-cool. I never felt any shame in making the photos.” On March 6, 2003, Almeida’s attorney sent a letter to Amazon requesting 4 statutory damages, pursuant to Fla. Stat. § 540.08, for its unauthorized use of her image....

...On July 7, 2003, Almeida’s attorney sent a civil theft demand letter to Amazon pursuant to Fla. Stat. § 772.011, to which Amazon apparently did not respond. On November 14, 2003, Almeida filed suit in Miami-Dade County, Florida asserting claims under: (1) the right of publicity statute, Fla. Stat. § 540.08; (2) the civil theft statute, Fla....

...On January 2, 2004, Amazon invoked diversity jurisdiction and removed the case to federal district court. On July 30, 2004, the district court granted Amazon's motion for summary judgment as to all of Almeida’s claims. The district court held that Almeida may not recover under section 540.08 because the subject matter of her claim has been preempted by the CDA. Assuming arguendo that the CDA does not preempt the subject matter of Almeida’s section 540.08 claim, the district court concluded that Almeida 5 consented to Cabral’s use of her image, and, therefore, section 540.08(3)(b) bars application of the statute....

...See Compl. ¶ 142 (stating that she is entitled to “compensatory damages [to] compensate her for the unauthorized use of her image, such sum to include the total gross revenues received by AMAZON through the unauthorized use of such image”). Although section 540.08 now codifies the common law right against misappropriation, the statute permits a party to proceed under available common law invasion of privacy theories. See § 540.08(6) (stating that “[t]he remedies provided for in this section shall be in addition to and not in limitation of the remedies and rights of any person under the common law against the invasion of her or his privacy”). Although Alm...

...violation of federal trademark laws); Gucci Am., Inc. v. Hall & Assocs., 135 F. Supp. 2d 409, 413 (S.D.N.Y. 2001) (recognizing that immunizing trademark infringement claims would limit laws pertaining to intellectual property). Almeida contends that the CDA does not preempt section 540.08 because it is a quintessential right of publicity claim, and the right of publicity is a widely recognized intellectual property right....

...In this case, we ask whether an internet retailer, such as Amazon, could be held liable under Florida’s right of publicity statute for displaying a book’s cover image in furtherance of the book’s sale. As we explain below, Almeida’s right of publicity claim based on Fla. Stat. § 540.08 would not withstand a motion to dismiss under the law....

...Therefore, it was unnecessary for the district court to determine whether the CDA preempts Almeida’s state law right of publicity claim, and we do not reach any of Almeida’s challenges to the district court’s application of the CDA here. 2. Application of Section 540.08 Almeida alleges that Amazon displayed her image on its websites in order to promote Anjos Proibidos, without her consent or just compensation, in violation of Fla. Stat. § 540.08. Section 540.08 reads in pertinent part: No person shall publish, print, display, or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use . . . . Fla. Stat. § 540.08(1)....

...initial sale or distribution thereof; or (c) Any photograph of a person solely as a member of the public and where such person is not named or otherwise identified in or in connection with the use of such photograph. Fla. Stat. § 540.08(3). In the present case, the district court concluded that Almeida consented to the use of her photograph in the first edition of Anjos Proibidos. Thus, it held that section 540.08(3)(b) bars the statute’s application to the subsequent use of Almeida’s image in the second edition. Almeida responds that she only consented to the use of her image for the first edition of Anjos Proibidos. As Almeida did not consent to the use of her image in connection with the sale of the second edition, she argues that section 540.08(3)(b) does not apply. We agree with the district court that Almeida has no recovery under section 540.08, although we do not reach the issue of whether section 540.08(3)(b) applies to the facts of this case. Instead, we hold that it is clear from Almeida’s complaint that Amazon did not use Almeida’s image for trade, commercial, or advertising purposes as those terms are 16 used in the statute. The Florida legislature enacted section 540.08 in order to expand the remedies available under the common law right against misappropriation.5 Courts have interpreted the statute’s commercial purpose requirement to require that a defendant’s unauthorized use “directly promote” a product or service. See Tyne v. Time Warner Entm’t Co., L.P., 901 So. 2d 802, 808 (Fla. 2005) (stating that “[t]he purpose of section 540.08 is to prevent the use of a person’s name or likeness to directly promote a product or service because of the way that the use associates the person’s name or personality with something else”); Loft v. Fuller, 408 So. 2d 619, 622–23 (Fla. Dist. Ct. App. 1981) (explaining that “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”). Applying this standard, courts have held that the use of an image in a publication is not for a “commercial purpose” under section 540.08 merely because the publication is offered for sale. Valentine v....

...2d at 622. 5 Under the statutory right of publicity, an individual may bring an action to enjoin the unauthorized use and to recover damages for loss or injury sustained because of the unauthorized publication, including a reasonable royalty and punitive damages. Fla. Stat. § 540.08(2). 17  The instant section 540.08 action is brought against Amazon, an internet bookseller that provides services similar to a traditional bookseller....

...experience by providing its customers with online cover images and publisher book descriptions. Almeida argues that all content provided by internet retailers on product detail pages is displayed for a commercial purpose as that term is used in section 540.08....

...icular products, (2) the sales of unrelated products, and (3) the retailer’s brand identity. Finally, according to Almeida, all prior cases have held that internet retailers are liable under section 18 540.08 for the unauthorized use of images to promote their products. See Gritzke v. M.R.A. Holding, LLC, 2003 U.S. Dist. LEXIS 9307, at *4 (N.D. Fla. 2003) (concluding that plaintiff stated a claim under section 540.08 by alleging that the producer/seller of a Girls Gone Wild videotape made the plaintiff the focus of the videotape’s advertisements, and prominently displayed the plaintiff on the videotape’s package, in advertisements, and on the defendant’s web site); Bosley v....

...displayed the plaintiff’s name, image, and likeness on the cover of the defendants’ video, and that such advertisements were not merely “incidental to the promotion” of these products). We disagree with Almeida’s broad interpretation of section 540.08's liability for internet retailers, and we distinguish the cases she cites in support of the proposition that all content on product detail pages is provided for a commercial purpose within the meaning of section 540.08. First, the defendants in Gritzke and Bosley made the editorial choice to include the plaintiffs’ images in the videotape, and to make the plaintiffs the focus of their advertisements, by prominently displaying the plaintiff...

...Accordingly, we affirm the district court’s grant of summary judgment as to Amazon’s right of publicity claim, but we do so on the ground that Amazon did not use Almeida’s image for the purpose of directly promoting a product or service in violation of section 540.08. B....

...In this action, the appellants, who themselves are not alleged to have been mentioned in the book, complain about the attention the book has attracted to them as the surviving relatives of Captain Loft. In dismissing the counts purporting to allege a violation of Section 540.08, Florida Statutes (1977) and a common law invasion of privacy, as set forth in the appellants' second amended complaint, the trial court elucidated the basis for its holding: 3....

...Accordingly, as to Counts II, IV and V of the Second Amended Complaint, the various defendants' motions to dismiss be and the same hereby are granted with prejudice. 4. Counts I, III and V of the Second Amended Complaint purport to allege a violation of Florida Statute 540.08. That statute is part of Chapter 540 of the Florida Statutes dealing with Commercial Discrimination. Although there has been no case law in Florida interpreting Florida Statute 540.08 which would in any way be relevant to the cause of action asserted here, examination of the statute together with decided cases from other jurisdictions involving similar statutes make it clear to the Court that no cause of action exists under the facts alleged herein. Florida Statute 540.08 applies only to actions in which a person's name or likeness is used for commercial trade or advertising purposes....

...The use of the decedent's name in the publication of "The Ghost of Flight 401" and the use of his name in the subsequent movie do not constitute commercial trade or advertising as those terms are used in the statute or as those terms have been interpreted in other jurisdictions. Florida Statute 540.08 also contains an exception to its application in sub-section 3....

...y right and involves an aspect of unjust enrichment of the defendants or his estate, survival rights may be held to exist following the death of either party. Restatement of Torts, 2d, § 652 I (1977); see also W. Prosser, supra, at 815. By enacting Section 540.08, the Florida Legislature has amplified the remedies available for the fourth form of invasion of privacy: commercial exploitation of the property value of a person's name or personality. Section 540.08 prohibits unauthorized publication of the name or likeness of any person, for trade, commercial or advertising purposes....

...ose as contemplated by the statute. Appellants claim the deceased's name was used for the "commercial" purpose of selling books by publicizing the reports of Captain Loft's reappearances as a ghost, and that hence the publication was in violation of Section 540.08 since appellants' permission was not secured. We cannot agree. 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 *623 the product or service of the publisher....

...Detective Publications, Inc., 307 F. Supp. 1212 (E.D.Tenn. 1968), affd. 419 F.2d 989 (6th Cir.1978); Mahaffey v. Official Detective Stories, Inc., 210 F. Supp. 251 (W.D.La. 1962). We simply do not believe that the term "commercial," as employed in Section 540.08, was meant to be construed to bar the use of people's names in such a sweeping fashion....

...the press and of speech. See, e.g., Cordell v. Detective Publications, Inc., supra ; Jenkins v. Dell Publishing Company, supra ; Mahaffey v. Official Detective Stories, Inc., supra . Having concluded that the publication as alleged is not barred by Section 540.08, we need not decide if, under the allegations of the complaint, the book was of current and legitimate public interest, thus removing it entirely from the scope of the statute....

...invasion of privacy. To me they should unequivocally have standing and while their burden is heavy, it should not be any heavier than the norm for an invasion of right of privacy action. The Florida Legislature would appear to agree with me, because Section 540.08(1)(c) has specifically granted standing to close relatives....

...§ 1332(a)(1). 10 Thione also counterclaimed for “trademark infringement,” “unfair competition,” and “false advertising and deceptive trade practices” under the Lanham Act, 15 U.S.C. § 1125(a), and for the “violation of [the] right of publicity” under Fla. Stat. § 540.08 and common law....

...Acme Circus initially brought an action for declaratory judgment of its right to use the name of Clyde Beatty in conjunction with its circus. Kuperstock counterclaimed against Acme and Collins on various grounds. Counts I and II of the counterclaim allege a violation of Fla.Stat. 540.08 (1967), which provides for recovery of damages for infringement of the right to publicity....

...he right of publicity in this diversity case, that under California law the right of publicity in Clyde Beatty’s name did not survive his death, and, therefore, Kuperstock possessed no right that could have been infringed in violation of Fla.Stat. § 540.08....

...867, 869-70 , 583 P.2d 721, 723-24 (1978); Hurtado v. Superi- or. Court, 11 Cal.3d 574 , 114 Cal.Rptr. 106, 109 , 522 P.2d 666, 669 (Cal.1974). While it may be that there is no true conflict between these two states on this issue, compare Cal.Civil Code § 3344 (1971) and Fla. Stat. § 540.08 (1967), the structure of the statutes is very different....

...There also exists, of course, the issue of the validity of the assignment. No challenge to it has thus far been made. 9 . Application of California substantive law to the issue of survivability and the existence of Kuperstock’s property right obviates appellees’ argument that application of Fla.Stat. § 540.08 (1967) would violate due process. Appellees argue that because the right of publicity in Beatty’s name passed into the public domain in 1965 and was used exclusively by Acme before 1967, when Fla.Stat. § 540.08 was enacted, application of § 540.08 would constitute an unconstitutional taking....

...("CD"), and assessed damages against International Cassette Corporation ("ICC") in the amount of $227,256.00. [9] The Jury found in favor of Plaintiffs Neva and the Estate of Scourby on their claim of unauthorized publication of name under Florida Statute 540.08 (1989) (Count III), awarding in favor of the Plaintiffs and against CDI and CD compensatory damages of $74,558.00 and punitive damages of $50,000.00, awarding against Defendant Turney compensatory damages of $100.00 and punitive damages of $17...

...I Plaintiff requests a continuing permanent injunction prohibiting the use of the Scourby name and phrase "Authorized Alexander Scourby's Latest Narration by CDI, CD, Turney and ICC pursuant to 15 U.S.C. § 1116(a) of the Lanham Act, Florida Statute § 540.08, and Florida Statute § 495.151, on the ground that such Defendants continue to use or authorize the use of the name and phrase in derogation of the jury's verdict....

...n August 24, 2000, the Tyne and Murphy children, along with Tigue and Kosko, filed suit against Warner Bros. [in the United States District Court for the Middle District of Florida] seeking recompense under Florida's commercial misappropriation law [section 540.08, Florida Statutes (2000)] [2] and for common law false light invasion of privacy....

...ct to be resolved by a jury. The district court granted the motion of appellees on all claims. Tyne v. Time Warner Entertainment Co., L.P., 204 F.Supp.2d 1338 (M.D.Fla.2002). With respect to the appellants' claim of commercial misappropriation under section 540.08, Florida Statutes, the district court held that section 540.08 applies only to actions in which a person's name or likeness is used for commercial trade or advertising purposes. "[M]erely using an individual's name or likeness in a publication is not actionable under § 540.08....

...commercial purpose, the court granted summary judgment on this claim. Tyne, 204 F.Supp.2d at 1342. The appellants appealed the district court's decision to the Eleventh Circuit Court of Appeals, arguing that the district court erred in finding that section 540.08 did not apply to the facts of this case. The Eleventh Circuit recognized that this issue is similar to that presented in Loft, as held by the district court, but concluded that it was uncertain as to the scope of section 540.08 and the applicability of Loft to these circumstances. The court thus certified the following question to this Court: TO WHAT EXTENT DOES SECTION 540.08 OF THE FLORIDA STATUTES APPLY TO THE FACTS OF THIS CASE? Tyne, 336 F.3d at 1291....

...This Court granted review to address the certified question. As the Eleventh Circuit stated we could, *806 we rephrase the certified question to the specific issue that we conclude is presented by this case. 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? ANALYSIS The question before this Court is a narrow one. As noted by the federal courts, the Fourth District Court of Appeal considered the applicability of section 540.08, Florida Statutes, to a publication which did not directly promote a product or service, but this Court has not directly addressed this question. In Loft, Dorothy Loft and her two children brought an action for, among other things, violation of section 540.08 for the alleged unauthorized publication of the name and likeness of the Lofts' deceased husband and father, Robert Loft....

...Subsequent to the press stories, The Ghost of Flight 401 was published in 1976. The book was a nonfictionalized account by the author of his investigation of the reports. A movie was also made based on this book. Loft, 408 So.2d at 620. The Fourth District held as follows: 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....

...s in no way distinguishes this book from almost all other books, magazines or newspapers and simply does not amount to the kind of commercial exploitation prohibited by the statute. We simply do not believe that the term "commercial," as employed by Section 540.08, was meant to be construed to bar the use of people's names in such a sweeping fashion....

...We also believe that acceptance of appellants' view of the statute would result in substantial confrontation between this statute and the first amendment to the United States Constitution guaranteeing freedom of the press and of speech. Having concluded that the publication as alleged is not barred by Section 540.08, we need not decide if, under the allegations of the complaint, the book was of current and legitimate public interest, thus removing it entirely from the scope of the statute. Loft, 408 So.2d at 622-23 (emphasis added) (citations omitted). We approve the Fourth District's logical construction of section 540.08 in Loft....

...C.B.S., Inc., 698 F.2d 430 (11th Cir.1983), at issue was a song written by Bob Dylan and *807 Jacques Levy depicting the murder trial of prizefighter Rubin "Hurricane" Carter. The plaintiff, a witness in the murder trial, brought an action alleging a violation of section 540.08 because the song falsely implied that she participated in a conspiracy to unjustly convict Carter. Id. at 431. The Eleventh Circuit held that the plaintiff's claim was not actionable under section 540.08....

...The court properly construed the statute to avoid confronting the constitutional question. United States v. Clark, 445 U.S. 23, 100 S.Ct. 895, 63 L.Ed.2d 171 (1980). Id. In Lane v. MRA Holdings, LLC, 242 F.Supp.2d 1205 (M.D.Fla.2002), the Middle District of Florida considered whether section 540.08 was violated by the defendants' display of the plaintiff exposing her breasts in a "Girls Gone Wild" video. The plaintiff had consented to being videotaped but was unaware that the video would be sold to the public. The federal court rejected the plaintiff's section 540.08 argument, reasoning as follows: Under Fla. Stat. § 540.08, the terms "trade," "commercial," or "advertising purpose" mean using a person's name or likeness to directly promote a product or service....

...promoting a product, but rather, as part of an expressive work in which she voluntarily participated. *808 Lane, 242 F.Supp.2d at 1212-14 (citations omitted); see also Epic Metals Corp. v. CONDEC, Inc., 867 F.Supp. 1009 (M.D.Fla.1994) (holding that section 540.08 prevents the use of a person's name or likeness to directly promote the product or service of publisher); Nat'l Football League v. The Alley, Inc., 624 F.Supp. 6 (S.D.Fla.1983) (same). We agree with the reasoning of these decisions and Loft that the purpose of section 540.08 is to prevent the use of a person's name or likeness to directly promote a product or service because of the way that the use associates the person's name or personality with something else. Loft, 408 So.2d at 622. We disagree with appellants' argument that to uphold the construction given to the statute in Loft renders the exceptions contained in section 540.08(3)(a) and (b) superfluous....

...f a fugitive from justice on a wanted poster distributed by the defendant surety company after the plaintiff's son fled while on bail. The Third District Court of Appeal concluded that while this use of the plaintiffs' names fell within the scope of section 540.08(1), the use was exempted under the newsworthiness exemption of section 540.08(3)(a)....

...Thus, as appellees argue, the newsworthiness exemption served an entirely practical, nonredundant function. See also Am. Ventures, Inc. v. Post, Buckley, Schuh & Jernigan, Inc., No. C92-1817Z, 1993 WL 468643 (W.D.Wash. May 18, 1993) (applying Florida law and finding that plaintiff had properly stated a cause of action under section 540.08 for use of plaintiff's resume in connection with job proposal—to promote a service)....

...hments by using the names and likenesses of the artists and celebrities whose works they are selling. The exemption does not simply authorize the resale of the exempted works themselves. Moreover, it should be emphasized that the Legislature enacted section 540.08 in 1967....

...n of the statute. Goldenberg v. Sawczak, 791 So.2d 1078, 1083 (Fla.2001). Finally, as recognized by United States District Court Judge Conway in the decision of the United States District Court, we find that defining the term "commercial purpose" in section 540.08 to apply to motion pictures or similar works raises a fundamental constitutional concern....

...t and Fourteenth Amendments. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). It is thus clear that the Picture is entitled to First Amendment protection, and would therefore, be excepted from liability under § 540.08....

...roduct." Id. Not only do these decisions demonstrate that the common usage of the term "commercial" in the commercial misappropriation and right of publicity context is indeed limited to the promotion of a product or service as the courts construing section 540.08 have concluded, but they also indicate that such works should be protected by the First Amendment....

...Southeast Volusia Hosp. Dist., 438 So.2d 815 (Fla.1983). Our construction of the statute in this case adheres to this obligation. For the foregoing reasons, we answer the rephrased certified question in the negative and hold that the term "commercial purpose" as used in section 540.08(1) does not apply to publications, including motion pictures, which do not directly promote a product or service. We approve Loft's construction of section 540.08....

...The appellees in this case are Time Warner Entertainment Company, L.P., d/b/a Warner Bros. Pictures, a Delaware limited partnership, Baltimore/Spring Creek Pictures, L.L.C., a Delaware limited liability company, and Radiant Productions, Inc., a Delaware corporation. [2] 540.08....

...In August of 1999, while the arbitration dispute was pending, Fielder brought the instant suit against Weinstein and the Weinstein Design Group (collectively Weinstein) seeking injunctive relief and damages based on Weinstein's use of Fielder's name for commercial purposes without his authorization, in violation of section 540.08, Florida Statutes, and for the common law tort of name misappropriation. Pre-trial, Weinstein stipulated to the entry of a permanent injunction, prohibiting Weinstein from future use of Fielder's name and he admitted to using Fielder's name without his consent in violation of section 540.08, Florida Statutes, and to committing common law name appropriation. *994 Therefore, the main issues of fact for trial were (1) whether the article printed in Florida Design magazine about Robert Weinstein was an exception to liability under section 540.08(3); (2) whether Weinstein was liable under section 540.08 for a set of allegedly undistributed brochures; (3) the amount of compensatory damages, if any; and (4) the amount of punitive damages, if any....

...hen two distinct claims for liability result in separate claims for damages in the same action." 2.B. Florida Design magazine Weinstein argues that the article published in the Florida Design magazine constitutes, as a matter of law, an exception to section 540.08, Florida Statutes, and therefore should not have been submitted to the jury for consideration. Section 540.08, entitled "Unauthorized publication of name or likeness," provides, in pertinent part: "No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, port...

...agazine, book, news broadcast or telecast, or other news medium or publication as part of any bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes; § 540.08(3)(a), Fla. Stat. This court has given an expansive interpretation to this exception. In Loft v. Fuller, 408 So.2d 619, 622-23 (Fla. 4th DCA 1981), this court stated: 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 *998 unauthorized use of a name to directly promote the product or service of the publisher....

...n no way distinguishes this book from almost all other books, magazines or newspapers and simply does not amount to the kind of commercial exploitation prohibited by the statute.... We simply do not believe that the term "commercial," as employed in Section 540.08, was meant to be construed to bar the use of people's names in such a sweeping fashion....

...zine will not attract purchasers. He argues that Galbo's testimony was unrebutted and was the only record evidence on this issue, which he claims should have compelled the trial court to hold that the magazine falls within the statutory exception to section 540.08 because (1) the article was of current legitimate interest; (2) the magazine published the article as an editorial; and (3) it was not an advertisement paid for by Weinstein. On the other hand, Fielder argues that whether the Florida Magazine article is exempt under section 540.08(3) was properly a factual issue for the jury....

...rospective clients does indicate that the article itself may have had some advertising value. While it is a close call, we hold that the standard for reversal under Anesthesiology Critical Care, 802 So.2d at 351, is not met here. In deciding whether section 540.08 is applicable to the Florida Design article, we examine the evidence in the light most favorable to Fielder, the non-moving party. Even considering this court's expansive application of the exception in section 540.08(3), we cannot say that the record would support the holding that "no proper view of the evidence could sustain a verdict in favor of the non-movant." Id....

...me; (5) testified that he did not disseminate the brochures; and (6) testified that he was not aware of any brochures that were ever published to the public. On the other hand, Fielder contends that the brochures nevertheless provide liability under section 540.08 because the language of the statute provides that "No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose...." § 540.08, Fla....

...Finally, it is undisputed that, when Weinstein learned of Fielder's objections, he never used Fielder's name again. Weinstein argues that the trial court erred by denying his motion for directed verdict on the punitive damages claim, thus submitting the punitive damages claim to the jury. We agree. Section 540.08(2), Florida Statutes, provides, in part, In the event the consent required in subsection (1) is not obtained, the person whose ......

...uld have been as to shock the judicial conscience. We have also held that the burden is upon the appellant to establish the fact that the verdict is wholly unsupported by the evidence or was the result of passion, prejudice or other improper motive. Section 540.08(2) provides that "damages for any loss or injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages." At trial, each side put on damage experts, whose testimon...

...AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR NEW TRIAL. MAY, J., and GOLD, MARC H., Associate Judge, concur. NOTES [1] Although the question of whether Stacey Fielder gave Weinstein oral permission to use Cecil Fielder's name is irrelevant to liability under section 540.08, Florida Statutes (which would require permission by Cecil Fielder), it is arguably relevant to the contested issue on appeal of whether the issue of punitive damages should have gone to the jury....

...[2] The statute allows either oral or written permission from the person whose name is used, but in a case where a third party gives consent on behalf of the person whose name is to be used, the statute requires a written authorization from the person whose name is used to the consenting third party. § 540.08(1)(b), Fla....

...other remedies available." 710 So.2d at 197. More recently, in Facchina v. Mutual Benefits Corp., 735 So.2d 499 (Fla. 4th DCA 1999), the Fourth District reviewed the same issue in the context of an unauthorized publication action brought pursuant to section 540.08, Florida Statutes (1993). [5] In ruling that the plaintiff's cause *1223 of action under the statute was not barred by the economic loss rule, the court said: When the legislature creates a statutory cause of action, as it has expressly done in section 540.08, it is presumed to know the common law of contract and tort and the limitations on such remedies created by judges....

...Hence, the legislature's use of unqualified terms-"any person" and "any loss of injury"-in the text of such a statute evidences to us its intent not to apply judicial limits on common law remedies to the new statutory cause of action. Therefore we agree with plaintiff that ELR does not bar his cause of action under section 540.08 for unauthorized use of his likeness in ads directed to homosexuals with AIDS....

...3d DCA 1999), the court receded from Rubio, 662 So.2d at 956, on other grounds. [4] Section 501.213(1), Florida Statutes (1991), provides that "[t]he remedies of this part are in addition to remedies otherwise available for the same conduct under state or local law." [5] Section 540.08(6), Florida Statutes (1993), provides: The remedies provided for in this section shall be in addition to and not in limitation of the remedies and rights of any person under the common law against the invasion of his privacy....

...The song discloses no private facts but merely details events Valentine previously disclosed through her public trial testimony. The trial court properly entered summary judgment for defendants on the invasion of privacy claims. Valentine’s statutory claim alleges a violation of Fla.Stat.Ann. § 540.08 (West 1972), which prohibits the unauthorized use of a person’s name or likeness for commercial, trade, or advertising purposes. The use is actionable under the statute because of the way the defendants associate the individual’s name or personality with something else. Loft v. Fuller, 408 So.2d 619 (Fla.App.1981) (construing § 540.08)....

...intellectual property rights, such as copyright, is not sound. Copyright law, for example, does not 8 We note that some states that statutorily have recognized a right of publicity have codified the first-sale doctrine. See, e.g., Fla.Stat.Ann. § 540.08(3)(b) ("The provision of this section [protecting a right of privacy] shall not apply to: ......

...Plaintiff's head and face were, however, cropped or "photoshopped" from a separate image and placed on the banner to appear as if Plaintiff is watching the couple as the sexual act took place. (TAC ¶ 34.) *1343 The TAC alleges: (1) unauthorized publication of likeness under Florida Statute § 540.08 against EJE, Ventura, Net and Westlake (count one); (2) defamation by implication against Net, Ventura, Westlake, EJE and Witucki (count two); (3) unjust enrichment against all Defendants (count three) and (4) declaratory and injunctive relief pursuant to Florida Statute § 501.201 et seq....

...violation of the Lanham Act, 15 U.S.C. § 1125. The trial court ultimately entered an order granting Bosem's motion for partial summary judgment and holding that Musa's use of Bosem's name, likeness and biography was unauthorized and in violation of section 540.08, Florida Statutes, and the Lanham Act....

...ting Memorandum of Law (Doc No. 62), filed on July 29, 2002, to which MRA, Ventura, Woodholly, and Mantra responded to (Doc. No. 76) on August 15, 2002. Lane's eight count Amended Complaint alleges unauthorized publication in violation of Fla. Stat. § 540.08 against MRA (Count I); Mantra (Count IV); Ventura (Count V); Woodholly (Count VI); and AMX (Count VII), common law invasion of privacy for commercial misappropriation of likeness against MRA (Count II), false light invasion of privacy against MRA (Count III), and common law fraud against AMX (Count VIII)....

...[28] This Court granted that motion on May 16, 2002 [29] , and on the same day Lane filed an Amended Complaint. [30] The first three counts of Lane's Amended Complaint state claims against MRA for unauthorized publication in violation of Fla. Stat. § 540.08 (Count I), common law invasion of privacy for commercial misappropriation of likeness (Count II), and false light invasion of privacy (Count III). [31] Counts IV, V, and VI assert claims for unauthorized publication in violation of Fla. Stat. § 540.08 against Mantra (Count IV), Ventura Distribution (Count V), Woodholly Productions (Count VI), and AMX (Count VII)....

...ies for their own personal use and that no one other than those present at the time of the filming would see any videotape made of the Plaintiff. [33] All five of the Defendants have moved for summary judgment on the claims asserted under Fla. Stat. § 540.08....

...nferences drawn therefrom, in the light most favorable to the non-moving party. See Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir.1993). IV. LEGAL ANALYSIS A. UNAUTHORIZED PUBLICATION OF NAME OR LIKENESS IN VILATION OF FLA. STAT. § 540.08 1. GENERALLY In Counts One, Four, Five, Six, and Seven of the Amended Complaint, Lane alleges claims against MRA, Ventura, Woodholly, Mantra Films, and AMX for violating Fla. Stat. § 540.08. See generally Doc. No. 32. Lane asserts these claims based on the Defendants alleged commercial exploitation of her image in the Girls Gone Wild video and its advertising campaign all without her consent. See id. Fla. Stat. § 540.08 provides in pertinent part: Unauthorized publication of name or likeness ......

...ustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages... In their motions for summary judgment, the Defendants argue that they are entitled to judgment as a matter of law on the § 540.08 claims because they did not display Lane for trade, commercial, or advertising purposes, and because Lane consented to the recording and distribution of her image and likeness....

...In addition, Lane argues that, as a minor, she was legally incapable of giving consent to the recording and distribution of her image. 2. FOR TRADE, COMMERCIAL, OR ADVERTISING PURPOSES The Defendants first argue that they are not liable under Fla. Stat. § 540.08 because they did not use Lane's image for trade, commercial, or advertising purposes. Under Fla. Stat. § 540.08, the terms "trade", "commercial", or "advertising purpose" mean using a person's name or likeness to directly promote a product or service. See Valentine v. CBS, *1213 Inc., 698 F.2d 430, 433 (11th Cir.1983) (recognizing that the proper interpretation of Fla. Stat. § 540.08 requires the plaintiff to prove that the defendants used a name or likeness to directly promote a product or service); Tyne v. Time Warner Entm't Co., L.P., 204 F.Supp.2d 1338 (M.D.Fla. 2002) (recognizing that Fla. Stat. § 540.08 only prohibits the use of a name or image when such use directly promotes a commercial product or service); Epic Metals Corp. v. CONDEC, Inc., 867 F.Supp. 1009, 1016 (M.D.Fla.1994) ("Florida Statute § 540.08 prevents the unauthorized use of a name or personality to directly promote the product or service of the publisher."); National Football League v. The Alley, Inc., 624 F.Supp. 6, 7 (S.D.Fla.1983) ("Section 540.08 of the Florida Statutes prohibit unconsented use of an individual's name and likeness only when such directly promotes a commercial product or service"); Loft v. Fuller, 408 So.2d 619, 622 (Fla. 4th DCA 1981) ("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")....

...he voluntarily participated. Consequently, in accordance with Section 47 of the Restatement, the use of Lane's image or likeness in Girls Gone Wild, and in the marketing of that video cannot give rise to liability. Several courts applying Fla. Stat. § 540.08 have come to similar conclusions....

...For instance, in Tyne v. Time Warner Entm't Co., LP., 204 F.Supp.2d 1338 (M.D.Fla.2002), this Court held that the use of the names and likenesses of individuals in a motion picture and the promotion and advertisement of such picture did not violate § 540.08 because there was no showing that their names and likenesses were used to directly promote a service or product. See id. at 1343. In Tyne, the plaintiffs, the surviving children and spouse of Frank William *1214 Tyne, Jr., a captain of a commercial fishing vessel that was lost at sea, brought suit against Time Warner under § 540.08, after his story became the motion picture, The Perfect Storm. See id. at 1339. In granting summary judgment, this Court held that the use of the plaintiffs' names or likenesses in The Perfect Storm was not actionable under § 540.08 because "[a] motion picture is not ......

...pose." Id. Likewise, in Loft v. Fuller, 408 So.2d 619 (Fla. 4th DCA 1981), Florida's Fourth District Court of Appeal denied a claim for the unauthorized publication of name or likeness arising out of a depiction in an expressive work of art because "Section 540.08 ......

...In dismissing this count, the trial court found "that the use of the decedent's name in the publication of The Ghost of Flight 401, and the use of his name in the subsequent movie did not constitute commercial trade or advertising." Id. at 621. On appeal, the Fourth District Court of Appeal, affirmed, holding: 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....

...newspapers and simply does not amount to the kind of commercial exploitation prohibited by the statute. Id. at 622-23. Upon reviewing Florida case law, it has come to this Court's attention that only one case has applied the provisions of Fla. Stat. § 540.08 to an expressive work. In Gritzke v. M.R.A Holding, LLC, No. 4:01cv495-RH (N.D.Fla. Mar. 15, 2002), Judge Hinkle of the Northern District of Florida determined that the plaintiff stated a valid claim under § 540.08 by alleging that her half naked image was plastered on the front cover of the videotape Girls Gone Wild without her authorization....

...at 4 ("Plaintiff has squarely alleged that defendant published her photograph in Florida for commercial and advertising purposes—specifically on the package of defendant's videotape and in advertisements therefor—and that defendant did so without her permission. This states a claim under § 540.08")....

...Because Lane has failed to establish that the Defendants used her image or likeness to directly promote a product or service unrelated to the participation in the expressive work Girls Gone Wild, summary judgment must be granted with respect to all of the claims brought pursuant to § 540.08. 3. CONSENT In addition to the lack of a trade, commercial, or advertising purpose, this Court finds that summary judgment is appropriate because Lane consented to the use of her image and likeness. Section 540.08 of the Florida Statutes provides that in order to be liable for commercial misappropriation, there must be an unauthorized publication....

...8] and contracting for goods and services. [69] To the contrary, however, Florida law has never recognized that a minor is incapable of consenting to the publication of her image and likeness where no compensation is involved. This interpretation of § 540.08 is corroborated by Fla....

...ndered in this state, where the contract sought to be approved is one under which .. the minor will ... endorse a product or service, or in any other way receive compensation for the use of right of publicity of the minor as that right is defined by § 540.08. From the plain language of this statute, it is apparent that § 540.08 incorporates the disability of nonage only with regards to publication of likeness for compensation, and not with respect to the ability of a minor to consent generally to the publication of his or her likeness....

...State, 335 So.2d 815, 817 (Fla.1976); Ideal Farms Drainage Dist. v. Certain Lands, 154 Fla. 554, 19 So.2d 234, 239 (1944)). Since the Florida legislature only addressed the disability of nonage with regards to contracting the right of publicity as defined under § 540.08, this Court must presume, under the maxim expressio unius est exclusio alterius, that the legislature did not need to address the application of the disability of nonage with respect to the broader issue of consent under § 540.08....

...ss. [70] See Doc. No. 32 at 4-5. See id. Under Florida law, the elements of common law invasion of privacy—commercial misappropriation of likeness coincide with the elements of unauthorized publication of name or likeness in violation of Fla. Stat. § 540.08....

...1145, 1147-48 (S.D.Fla. 1990) (noting that fourth theory of recovery under common law invasion of privacy, "appropriation for commercial benefit, is statutory in Florida"); Loft v. Fuller, 408 So.2d 619, 622 (Fla. 4th DCA 1981) ("By *1221 enacting section 540.08, the Florida Legislature has amplified the remedies available for the fourth form of invasion of privacy: commercial exploitation of the property value of a person's name or personality")....

...sochistic abuse and which is harmful to minors"). [66] See Fla. Stat. § 794.05(1) ("A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree..."). [67] See Fla. Stat. § 540.08....

...r violation of this rule of conduct, they are injured by the exercise of the right with which the law purposely invested the latter, nor charge that the infant, in exercising the right, is guilty of fraud"). [70] The Defendants argue that Fla. Stat. § 540.08 absorbed the common law claim of invasion of privacy based upon a commercial misappropriation of likeness. However, section 6 of Fla. Stat. § 540.08 provides that the "remedies provided for in this section shall be in addition to, and not in limitation of the remedies and rights of any person under the common law against the invasion of her or his privacy." See also Loft v. Fuller, 408 So.2d 619, 622 (Fla. 4th DCA 1981) ("By enacting section 540.08, the Florida Legislature has amplified the remedies available for the fourth form of invasion of privacy: commercial exploitation of the property value of a person's name or personality")....

...peal. Affirmed in Part; Reversed in Part; and Remanded. POLEN, J., and BONAVITA, AUGUST, Associate Judge, concur. . It appears that Leibel later dropped the claim for credit card fraud and added claims for statutory misappropriation, in violation of section 540.08, Florida Statutes; property damage; and intentional infliction of emotional distress.

...Plaintiffs have demonstrated irrepable injury to which there is no adequate remedy at law. Moreover, defendants' unlawful practices are inimical to the public interest embodied in Section 605. Injunctive relief is therefore appropriate. Florida's Statutory "Right of Publicity" 7. Section 540.08 of the Florida Statutes prohibit unconsented use of an individual's name and likeness only when such directly promotes a commercial product or service. Loft v. Fuller, 408 So.2d 619 (Fla. 4th D.C.A., 1981). Because defendants did not so use Dolphins players' appearances in the intercepted transmissions, such use did not violate Section 540.08. 8. Moreover, Section 540.08 exempts from its prohibition unconsented use of names or likenesses as part of a "presentation having a current or legitimate public interest." Defendants' use of the intercepted telecast falls within this statutory exemption....

...ccrues at the time of the first publication in this state. [6] Applying the plain meaning of these statutory provisions, plaintiffs' claims became time-barred 4 years after the first publication in Florida. Because their statutory claim was based on section 540.08, [7] as distinguished from a claim based on the common law of defamation, plaintiffs argue, it did not accrue until they discovered the unauthorized 1988 publication many years later, in 1995....

...Section 95.11(4) begins the running of the statute for professional malpractice from the time of discovery. Finally, section 95.051 tolls the running of the statute in several explicit circumstances, but none of the enumerated circumstances include discovery in a case involving section 540.08....

...also rely on section 770.07 which provides that certain claims for damages founded on a single publication "shall be deemed to have accrued at the time of the first publication ... in this state." Plaintiff responds that an action for damages under section 540.08 is not one of those specific actions encompassed by section 770.07. We do not agree. The kinds of actions covered by section 770.07 are expressly given as "libel or slander, invasion of privacy, or any other tort founded upon any single publication...." [10] Plaintiff contends that an action for damages under section 540.08 is not an action for invasion of privacy and thus is not embraced by section 770.07. We note that subsection (6) of section 540.08 states that the "remedies provided for in this section shall be in addition to and not in limitation of the remedies and rights of any person under the common law against the invasion of her or his privacy." If an action for damages under section 540.08 were not reasonably thought of as within the broader term, "invasion of *536 privacy," then subsection (6) would seem to be unnecessary and mere surplusage. In any event, even if the section 540.08 claim was not strictly speaking an action for invasion of privacy, surely it fits within the comprehensive term "any other tort" based upon, as here, a single publication. Hence, because all of the statutory text points to the necessity to bring a damages claim under section 540.08 within 4 years of accrual of the cause of action, rather than within 4 years of discovery of the fact of publication, we conclude that plaintiffs' statutory claim under section 540.08 was time-barred....

...REVERSED. GUNTHER, J., and HOLMES, ILONA M., Associate Judge, concur. NOTES [1] Actually there are two photographer defendants, the Hurths and their corporation, Tiffany. [2] Two separate theories of liability went to the jury: one based on a violation of section 540.08 and the other based on invasion of privacy....

...95.11(3), but in any event an action for fraud under s. 95.11(3) must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered."). [6] § 770.07, Fla. Stat. (1997). [7] § 540.08(2), Fla....

...nham Act, 15 U.S.C. § 1125(c)(1) [Count IV]; Florida common law unfair competition [Count V]; Florida trademark dilution in violation of Section 495.151, Florida Statutes [Count VI]; and unauthorized publication of name and likeness in violation of Section 540.08, Florida Statutes (Florida's "Right of Publicity" statute) [Count VII]....

...Count II is a cause of action against all the Appellees, alleging that Jensen was fraudulently induced to enter into the agreement. [1] Count III alleges that the SFL, the Miami Tropics and Rice misappropriated Jensen's name and picture in violation of section 540.08, Florida Statutes (2000)....

...sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person's... picture in such manner as is forbidden or declared to be unlawful by the last section, the jury, in its discretion, may award exemplary damages. [2] Section 540.08, Florida Statutes (1977) provides in pertinent part: (1) No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the ......

...III; reverse passing off in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (Count IV); and unfair competition under Florida common law (Count V). On April 29, 1994, defendants filed counterclaims alleging violation of Florida Statute § 540.08 (1993) (Counts I and III), and claims for common law invasion of privacy (Counts II and IV)....

...The issue of statutory damages resulting from defendants' copyright violation as alleged in Count II is reserved for trial. III Plaintiff has also moved for summary judgment on defendants' counterclaims. Defendants' counterclaim alleges violations of Florida Statute § 540.08, and claims for common law invasion of privacy....

...jury question. Defendants state that a 40 year statute of limitations is provided for in the statute and that even if this is not the applicable statute of limitations, the republication in 1991 constitutes a separate cause of action. See Fla.Stat. § 540.08(4). Florida Statute § 540.08 provides in relevant part: (1) No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use ......

...(4) No action shall be brought under this section by reason of any publication, printing, display, or other public use of the name or likeness of a person occurring after the expiration of 40 years from and after the death of such person. Fla.Stat. § 540.08 (1993)....

...American Nat'l Red Cross, 992 F.2d 298, 301 (11th Cir.1993) (citations omitted). Statutes of repose terminate the right to bring an action after the lapse of a specific period. Statutes of limitations provide the time a party has to initiate an action once the injury has occurred. Section 540.08(4) is a statute of repose because it terminates the right to bring an action if the commercial use does not transpire within 40 years after the death of the individual. This is an absolute bar occurring before the cause of action accrues. Because section 540.08 does not provide its own limitations period and the action does not fall within any of the specific categories provided in Florida Statute § 95.11, the four year all inclusive statute of limitations is applicable....

...isible. His head is down, and he is wearing a straw hat. The depiction of Souliere is less than a half inch in width and length. Further, the black and white photograph is unclear and defendant Souliere's features are unrecognizable. Florida Statute § 540.08 prevents the unauthorized use of a name or personality to directly promote the product or service of the publisher....

...In a motion to dismiss for failure to state a cause of action, matters outside the pleading are not considered. Therefore, Nottage is distinguishable on its facts. *1017 Moreover, this photograph falls within the statutory "member of the public" exception. See Fla.Stat. § 540.08(3)(c)....

...Therefore, this Court finds that no reasonable juror could find that the photograph of defendant Souliere in plaintiff's brochure constituted commercial exploitation or that it does not fall within the member of the public exception provided by Florida Statute § 540.08(3)(c)....

...perhaps because the applicability of the doctrine is taken for granted.8 The cases cited by appellants do not show that the 8 We note that some states that statutorily have recognized a right of publicity have codified the first-sale doctrine. See, e.g., Fla. Stat. Ann. § 540.08(3)(b) (“The provision of this section [protecting a right of privacy] shall not apply to: ....

...Counts VIII-X: Unauthorized Publication of James' Name and Likeness, Misappropriation, and False Light in the Public Eye Counts VIII through X relate to misappropriation of James' image. However, as discussed at the Hearing, in order to recover monetary damages for Defendants' misappropriation under Fla. Stat § 540.08, misappropriation under common law, or for the privacy violation of being placed in a false light, Plaintiffs must conclusively demonstrate the manner in which Plaintiff Adrian James was personally damaged....

...The models allege Dirty Martini did not have authorization to use their photographs. In the operative complaint, the models allege twelve claims: (1) violation of the Lanham Act, 15 U.S.C. § 1125 (a)(1); (2) unauthorized publication of name or likeness in violation of Fla. Stat. § 540.08 ; (3) common law invasion of privacy-misappropriation; (4) civil theft; (5) common law conversion; (6) violation of Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”); (7) unfair trade competition; (8) defamation; (9) fraudulen...

...Procedural History On January 3, 1989, Sally Heath, as guardian ad litem for Cristal, filed this action against PEI based on the March 1988, issue of Playboy. [3] The complaint alleged three counts: invasion of privacy by placing Cristal in a false light, violation of Florida Statute § 540.08 (commercial exploitation), and violation of a duty to protect minors from sexual exploitation....

...Hitchner, 549 So.2d 1374 (Fla.1989); Guin v. City of Riviera Beach, 388 So.2d 604 (4th DCA 1980); Jacova v. Southern Radio and Television Co., 83 So.2d 34 (Fla.1955). *1148 A fourth theory of recovery, appropriation for commercial benefit, is statutory in Florida. Fla.Stat. § 540.08 (1988)....

...s prohibited by Florida Statute § 415.502 (1990). [12] Early in this lawsuit, Plaintiff abandoned her argument that PEI had violated "a duty to protect minors from sexual exploitation." Moreover, plaintiff abandoned her claim under Florida Statutes § 540.08, which requires written consent for use of photographs for advertising or other commercial purposes.

...Faulkner Press alleges in Count Six that Class Notes intentionally published false copyright management information by printing "Einstein's Notes (C)" on its note packages. Faulkner Press alleges in Count Seven that Class Notes used Dr. Moulton's name for commercial and advertising purposes in violation of section 540.08, Florida Statutes, by including the words "Professor Moulton" on the cover of its note packages....

...Accordingly, summary judgment for Class Notes will be granted on Counts Five and Six. F. Use of Professor Moulton's Name Faulkner Press alleges in Count Seven that Class Notes used Dr. Moulton's name for commercial and advertising purposes in violation of section 540.08, Florida Statutes, by including the words "Professor Moulton" on the cover of its note packages....

...es did not remove or add copyright management information when it created its note packages. There is also no evidence that Class Notes intended to aid infringement by removing or adding copyright management information. Count Seven for violation of section 540.08, Florida Statutes, presents no genuine issues because Class Notes did not use Dr....

...PEARSON and FERGUSON, JJ. PER CURIAM. Andrew Nottage commenced this action against Alexander Muss & Sons, Alexander Muss & Sons, Inc., [1] and American Express Company on a complaint for common law invasion of privacy and unauthorized publication of name or likeness under Section 540.08, Florida Statutes (1983)....

...It also contends that plaintiff is unable to show legal damages. Both of these contentions are in the nature of defenses to the action. On its face, the complaint sufficiently alleges both commercial exploitation and legal damage. Further, whether the exception provided in Section 540.08(3)(c) applies to the facts of this case cannot be determined on a motion to dismiss in light of the allegation that plaintiff was photographed in the uniform of the Seacoast Towers, and the picture was displayed prominently in an advertisement promoting both the Seacoast Towers and the American Express Company....

...r relief. See Augustine v. Southern Bell Telephone & Telegraph Co., 91 So.2d 320 (Fla. 1956); Bricker v. Kay, 446 So.2d 1151 (Fla. 3d DCA 1984). The existence of commercial exploitation and damages, and the applicability of the exception provided in Section 540.08(3)(c), if placed in issue by answer or *1069 affirmative defense, will become matters for proof. Reversed and remanded with instructions to reinstate the complaint. NOTES [1] Defendants Alexander Muss & Sons and Alexander Muss & Sons, Inc., settled with the plaintiff so they are not parties to this appeal. [2] Section 540.08, Florida Statutes (1983) provides: Unauthorized publication of name or likeness....

...King, 658 So.2d 518 (Fla.1995) (district court *1011 of appeal has certiorari jurisdiction to review whether the trial court followed the procedural requirements of section 768.72, Florida Statutes). Respondent, Christopher Hinn, was the subject of a whistleblower feature on WFTV's news program. Hinn sued WFTV pursuant to section 540.08, Florida Statutes (1997) (unauthorized publication of name or likeness), because WFTV used a videotape featuring him to advertise its news program....

...nt which would provide a reasonable basis for recovery of such damages. A plaintiff must obtain leave from the trial court to amend the complaint before a claim for punitive damages can be asserted. See Simeon, Inc. v. Cox, 671 So.2d 158 (Fla.1996). Section 540.08(2), Florida Statutes (1997) authorizes recovery of punitive damages, but does not provide any procedure by which such claim may be pled. Hinn asserts that section 768.72 is not applicable to a cause of action under section 540.08. We disagree, and find that sections 540.08 and 768.72 should be read together. Although section 540.08 allows for the recovery of punitive damages, the procedure enacted by the legislature in section 768.72 must be followed....

...."). Therefore, the plaintiff failed to establish liability or damages on the contributory infringement claim. C. Statutory Misappropriation of Image The plaintiff also claims that the defendants misappropriated her image, in violation of Fla. Stat. § 540.08....

...on. These facts constitute a violation of this statute. See, e.g., Gritzke v. M.R.A. Holding, *1311 LLC, No. 4:01CV495-RH, 2002 WL 32107540 (N.D.Fla.) (unauthorized use of a woman's image on the cover of a "Girls Gone Wild" video violates Fla. Stat. § 540.08). Fla. Stat. § 540.08(2) provides that a prevailing plaintiff may recover: (1) "damages for any loss or injury sustained by reason ......

...*1312 Here, it is undisputed that the defendants' misuse of her photograph has tarnished the plaintiff's image and disrupted her ability to control that image. Therefore, the plaintiff will be awarded $25,000 compensation for harm to her reputation caused by the plaintiff's violation of Fla. Stat. § 540.08. 2. Punitive damages The plaintiff asserts, in a conclusory manner, that she is entitled to $25,000 in punitive damages pursuant to Fla. Stat. § 540.08(2) (Doc. 121, p. 9). Although the defendants' unauthorized use of her self-portrait clearly violates Fla. Stat. § 540.08, their misconduct does not meet the "high standard" necessary for the imposition of punitive damages....

...Thus, as previously indicated, the plaintiff may not recover damages twice for the same injury simply because she has two legal theories. See, e.g., Besett v. Basnett, supra, 437 So.2d at 173. The plaintiff may be suggesting that she is entitled to a double recovery based upon Fla. Stat. § 540.08(7), which provides that, "[t]he remedies provided for in this section shall be in addition to and not in limitation of the remedies and rights of any person under the common law against the invasion of her ......

...Rather, this statutory provision allows a plaintiff to assert statutory and common law claims for invasion of privacy in the same action without abridging the types of remedies available under the common law. See Almeida v. Amazon.com, Inc., supra, 456 F.3d at 1325 ("The Florida legislature enacted section 540.08 in order to expand the remedies available under the common law right against misappropriation"); Loft v. Fuller, 408 So.2d 619, 622 (Fla.App.1981) ("By enacting Section 540.08, the Florida Legislature has amplified the remedies available for ......

...in engaging in the defamatory act "was to indulge ill will, hostility, and an intent to harm." Florida Standard Jury Instruction MI 4.4., pp. 3-4. However, as discussed in connection with the plaintiff's request for punitive damages under Fla. Stat. § 540.08, the evidence unquestionably does not support such finding because the defendants were unaware of the violation when they produced the infringing Body Magic packaging....

...laintiff Lara Jade Coton, and against defendants Televised Visual X-Ography, Inc., and Robert Augustus Burge, on the plaintiff's claims of direct copyright infringement, defamation by implication, and misappropriation of image pursuant to Fla. Stat. § 540.08, in the amount of $129,173.20, with interest thereon in accordance with 28 U.S.C.1961....

...the Defendants have used the report as an example of their work when seeking employment with law firms around the State of Florida and perhaps elsewhere." Her complaint alleged causes of action for unauthorized publication of name or likeness under section 540.08, Florida Statutes (1997), two counts of invasion of privacy (appropriation of name or likeness and public disclosure of private facts), injunctive relief, and intentional infliction of emotional distress....

...Dinin, 734 So.2d 532 (Fla. 4th DCA 1999), and finding that the appellees first published the report in 1991 and Baucom did not file her complaint until 1999. [1] Dinin does not control this case. Dinin involved a cause of action brought pursuant to section 540.08 based on the publication of a photograph in a book....

...released The Perfect Storm ("the Picture"), a motion picture based on the book and the events that occurred during the "storm of the century." On August 24, 2000, Plaintiffs filed the instant action asserting claims for: (1) unauthorized commercial appropriation of decedents' likenesses, in violation of Florida Statute § 540.08; (2) unauthorized commercial appropriation of Plaintiffs' likenesses, also in violation of § 540.08; (3) common law invasion of privacy—false light; and (4) common law invasion of privacy based on disclosure of private facts....

...The Court considers the evidence and all inferences drawn therefrom in the light most favorable to the non-moving party. See Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 918 (11th Cir.1993), reh'g and reh'g en banc denied, 16 F.3d 1233 (11th Cir.1994). III. DISCUSSION A. Section 540.08 Claims In Counts One and Eight of the complaint, Plaintiffs allege that, by using the names and likenesses of Decedents Tyne and Murphy in The Perfect Storm without consent, Defendants violated Fla.Stat. § 540.08. In Counts Two, Three, Four, Nine, Ten, and Thirteen, Plaintiffs assert claims pursuant § 540.08, based on the Picture's use of their own likenesses without consent....

...s is not used for advertising purposes; Defendants concede that they did not obtain authorization to include characters based on Plaintiffs and the decedents prior to the production of The Perfect Storm. However, they argue that they did not violate § 540.08 by failing to obtain such authorization, because The Perfect Storm is an expressive work that has no commercial advertising purpose, and is, therefore, outside the scope of the rights protected by § 540.08. Plaintiffs contend, however, that the marketing and distribution of The Perfect Storm constitutes a "commercial purpose" for the purposes of § 540.08. Plaintiffs appear to acknowledge that publications *1341 protected by the First Amendment are not subject to liability under § 540.08, but nevertheless contend that the Picture is not subject to First Amendment protection because the film contains substantial and material falsity....

...cture. Loft's family filed an action for invasion of privacy and unauthorized publication of Loft's name and likeness, based on the movie's depiction of Loft as a "reappearing ghost." In dismissing the counts of the complaint alleging a violation of § 540.08, the trial court stated, "Florida Statute 540.08 applies only to actions in which a person's name or likeness is used for commercial trade or advertising purposes....

...use of his name in the subsequent movie do not constitute commercial trade or advertising as those terms have been interpreted in other jurisdictions." Id. at 621. The Fourth District Court of Appeal, in affirming the trial court, held: 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....

...s and simply does not amount to the kind of commercial exploitation prohibited by the statute. Id., 408 So.2d at 622-23. The court's statement makes it clear that merely using an individual's name or likeness in a publication is not actionable under § 540.08....

...ommercial purpose. Plaintiffs have presented no evidence showing that their names and likenesses were used "to directly promote" The Perfect Storm. See Loft, 408 So.2d at 622. In the absence of such evidence, Plaintiffs have no cause of action under § 540.08 Having determined that their names and likenesses were not used for trade, commercial, or advertising purposes, the Court need not extensively address the issue of whether the Picture falls within the § 540.08(3) exception for publications "having a current and legitimate public interest," and are subject to First Amendment protection....

...and Fourteenth Amendments. Joseph Burstyn v. Wilson, 343 U.S. 495, 501-02, 72 S.Ct. 777, 780-81, 96 L.Ed. 1098 (1952). It is thus clear that the Picture is entitled to First Amendment protection, and would therefore, be excepted from liability under § 540.08. This provides another basis for the Court's conclusion that Defendants are entitled to summary judgment on these claims. Finally, the Court addresses Plaintiffs' argument that Defendants are liable under § 540.08 because the Picture contains fictionalized elements even though it purports to be "a true story." This argument has no merit. No Florida court has interpreted § 540.08 to include an element of falsity....

...Because Plaintiffs' have failed to establish the existence of a genuine issue of material fact as to whether Defendants used the decedents' and their own names and likenesses for commercial purposes without authorization, summary judgment must be granted with respect to all claims brought pursuant to § 540.08....

...ir costs of action. 4. This case shall be removed from the June 2002 trial calendar. 5. The Clerk shall close this case. NOTES [1] Apparently realizing that the weight of Florida authority is against them, Plaintiffs encourage the Court to interpret § 540.08 in accordance with New York law....

...Mlinar challenges the circuit court’s order dismissing four state law claims against UPS and others, including conversion; profiting by criminal activity under section 817.02, Florida Statutes (2015); unauthorized publication of name or likeness under section 540.08, Florida Statutes (2015); and violating Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) under chapter 501, Florida Statutes (2015)....

...ly appeals the judgment of dismissal. We are thus concerned on appeal with the application of the ELR only as against claims for unauthorized publication, invasion of privacy, and defamation. Plaintiff bases his claim for unauthorized publication on section 540.08 which provides in pertinent part as follows: "(1) No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of...

...ich are protected by contract law, rather than tort law." Id. Plaintiff's claim for unauthorized use is based not on tort or contract law but on a statutory right. When the legislature creates a statutory cause of action, as it has expressly done in section 540.08, it is presumed to know the common law of contract and tort and the limitations on such remedies created by judges....

...Hence, the legislature's use of unqualified terms—"any person" and "any loss or injury" —in the text of such a statute evidences to us its intent not to apply judicial limits on common law remedies to the new statutory cause of action. Therefore we agree with plaintiff that ELR does not bar his cause of action under section 540.08 for unauthorized use of his likeness in ads directed to homosexuals with AIDS....

...[2] Generally, the second amended complaint sought the same damages as the previous complaints, consisting of humiliation, loss of reputation, severe emotional distress, and loss of opportunities and profits in his modeling career, as well as physical injuries resulting from severe emotional distress. [3] See § 540.08, Fla....

...After Nutrivida declared bankruptcy, Plaintiff commenced this action against Defendants. Plaintiff brought this four count action against Defendants for (1) violation of the Lanham Act, 15 U.S.C. § 1125 ; (2) Unauthorized Use of Name, Likeness, and Image under § 540.08 Fla....

...rk Times Co. v. Nat'l Aeronautics & Space Admin., 782 F.Supp. 628, 630 (D.D.C. 1991). In another context, it is well-established law that the right to privacy survives death. Florida recognizes both a statutory and common law right of publicity. § 540.08, Fla. Stat. (2016); see, e.g., Cason v. Baskin, 155 Fla. 198 , 20 So.2d 243, 245 (Fla. 1944). The right of publicity is a corollary right derived from the right to privacy that allows a person to control the use of his or he^ name and likeness. Section 540.08, Florida Statutes, authorizes the surviving spouse of a, decedent to enforce the decedent’s publicity rights for up to forty years. See § 540.08(1), (5)-(7)....

...Tartell asserted five causes action: federal cybersquatting, 15 U.S.C. § 1125(d); false designation of origin, id. § 1125(a); unfair competition; false advertising, id. § 1125(a); and unauthorized publication of name and likeness, Fla. Stat. § 540.08. 3  Case: 14-13178 Date Filed: 06/23/2015 Page: 4 of 12 Dr....

...Plaintiffs assert that defendant has utilized their promotional literature — including a picture of one of the plaintiffs without her consent — to enhance the marketability of its own line of products. Thus, plaintiffs contend that defendant has violated Florida Statute Section 540.08....

...Right of Publicity Plaintiff alleges that Defendants "have misappropriated for their own benefit the right of publicity of Plaintiff." (Doc. 33, ¶ 36). Although Plaintiff does not specify the common law or statutory basis for this claim, to the extent Plaintiff seeks relief pursuant to Fla. Stat. § 540.08, the Court finds Plaintiff's claims to be without merit....

...That statute provides, in relevant part: (1) No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use .... Fla. Stat. § 540.08(1)....

...ast of the show. Plaintiff also asserts statutory and common law claims for appropriation of his name and likeness, which are at issue in the motion to dismiss. Because the Court agrees Plaintiffs pleadings do not state a claim under Florida Statute § 540.08 and the common law doctrine, the Court grants the motion to dismiss without prejudice....

...likeness during the Maria Elvira Live show and posted it on "You Tube." Plaintiff has alleged three (3) causes of action against Defendants: (1) Copyright Infringement; (2) Unauthorized Publication of Name or Likeness in violation of Florida Statute § 540.08; and (3) Invasion of Privacy under Florida law....

...544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In short, the complaint must not merely allege a misconduct, but must demonstrate that the pleader is entitled to relief. See Iqbal, 129 S.Ct. at 1950. III. LEGAL ANALYSIS A. Count 2: Florida Statute § 540.08 Florida Statute § 540.08 prohibits the unauthorized publication of a person's name or likeness....

...It reads: No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use given by . . . [s]uch person. *1258 § 540.08, Fla. Stat. To maintain a cause of action for a violation of section 540.08, a plaintiff must allege that his or her name or likeness is used to directly promote a commercial product or service, such as T-shirts, hats, coffee mugs, etc....

...on their website the videoclips [sic] from the `Maria Elvira Live' show. Under Twombly and Iqbal, the Court does not find Plaintiffs allegations sufficient to state a claim especially given the robust body of Florida law interpreting Florida Statute § 540.08....

...Inclusion of one's name, likeness, portrait, or photograph in any type of publication alone does not give rise to a valid cause of action. Valentine v. C.B.S., Inc., 698 F.2d 430, 433 (11th Cir.1983); Nat'l Football League v. The Alley, Inc., 624 F.Supp. 6, 7 (S.D.Fla.1983) ("[S]ection 540.08 of the Florida Statutes prohibits uncensored use of an individual's name and likeness only when such use directly promotes a commercial product or service"). In Valentine, the Eleventh Circuit upheld a decision to grant summary judgment against Plaintiff Patty Valentine, who brought a claim under Florida Statute § 540.08 when Bob Dylan used her name in a song regarding a murder trial in which she testified....

...In Tyne, the surviving children and spouse of the crew of the Andrea Gail, a commercial fishing vessel that was lost at sea and the focal point of the motion picture, The Perfect Storm, filed suit against Time Warner alleging a violation of Florida Statute § 540.08, because Time Warner had used the names and likenesses of the crew members without consent in the motion picture. In granting summary judgment, the Tyne Court held the use of the plaintiffs' names and likenesses in connection with the promotion of the motion picture, The Perfect Storm, did not violate Florida Statute § 540.08, because "[a] motion picture is not ....

...ication is commercial in that sense, this in no way distinguished this book from almost all other books, magazines or newspapers and simply does not amount to the kind of commercial exploitation prohibited by the statute. Id., 204 F.Supp.2d at 1341. Section 540.08 is "designed to prevent the unauthorized use of a name to directly promote the product or service of the publisher." The district court in Loft states that "the publication is harmful not simply because it is included in a publication...

...his personality with something else." Id., 408 So.2d at 622-23. Valentine, Lane, Tyne, and Loft all make clear that the allegations contained in paragraph 30 of Plaintiff's complaint are insufficient to state a cause of action under Florida Statute § 540.08....

...There is no allegation that Mr. Fuentes's name and likeness was used to promote some other product or service on the show. Ewing also fails to support the Plaintiffs position as the court in that case found the publication *1260 of plaintiffs' likeness not actionable under § 540.08....

...Indeed, should the record be undisputed at summary judgment that the factual allegations in paragraph 30 are true, Plaintiff would still be unable to survive summary judgment as his allegations are insufficient to state a claim under Florida Statute § 540.08....

...laintiff may do so in an amended complaint. Having determined that Plaintiffs name and likeness was not used for trade, commercial, or advertising purposes, the Court need not address the issue of whether the Maria Elvira Live shows falls within the § 540.08(3) exception for publications "having a current and legitimate public interest." B. Count 3: Invasion of Privacy The statutory remedies found in Florida Statute § 540.08(7) are "in addition to, and not in limitation of the remedies and rights of any person under the common law against the invasion of her or his privacy." § 540.08(7), Fla....

...1 (11th Cir.2006) (finding that the statutory and common law rights of publicity are "substantially identical"). In Almeida, the Eleventh Circuit upheld the dismissal of a common law invasion of privacy-misappropriation claim without employing an analysis separate from the statutory one under § 540.08....

...violation of the Lanham Act, 15 U.S.C § 1125. The trial court ultimately entered an order granting Bosem's motion for partial summary judgment and holding that Musa's use of Bosem's name, likeness and biography was unauthorized and in violation of section 540.08, Florida Statutes, and the Lanham Act....

...Chen's Amended Complaint brings 10 counts against Defendants: breach of contract (Count I); false designation of origin under the Lanham Act, 15 U.S.C. § 1125(a)(1)(2006) (Count II); misappropriation of name and likeness pursuant to Florida Statutes § 540.08 (2007) (Count III); unfair competition (Count IV); recovery of overtime compensation (Count V); wages (Count VI); breach of implied covenant of good faith and fair dealing (Count VII); accounting (VIII); unjust enrichment (Count IX); and declaratory relief (X)....

...l times material, Steele acted in the `interest of the employer.'" Am. Compl. ¶ 134. Accordingly, at this time, the Court will not dismiss this count as it pertains to Mr. Steele. 2. Misappropriation of Name and Likeness (Count MI) Florida Statutes § 540.08 governs a claim for misappropriation of name and likeness. Pursuant to § 540.08: No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use given by: (a) Such person; or (b) Any other person, firm or corporation authorized in writing by such person to license the commercial use of her or his name or likeness ... Fla. Stat. § 540.08(1)....

...unauthorized publication, printing, display or other public use, and *1300 to recover damages for any loss or injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages," id. § 540.08(2), but only if the use was not subject to an exception listed in the statute, see id. § 540.08(3). Defendants contend that Mr. Chen's misappropriation of name and likeness claim should be dismissed because they only used Mr. Chen's name and likeness in connection with selling Mr. Chen's artwork, a use that falls within the § 540.08(4)(b) exception: The use of such name, portrait, photograph, or other likeness in connection with the resale or other distribution of... artistic productions or other articles of merchandise or property where such person has consented to the use of ... his name, portrait, photograph, or likeness on or in connection with the initial sale or distribution thereof ... Id. § 540.08(4)(b); see also Tyne v....

...Yet, Mr. Chen alleges that he demanded that Cayman cease such use, and that "[s]ince his resignation from Cayman Arts, Chen has never consented to the use of his name and likeness by Cayman Arts for any purpose." Am. Compl. ¶¶ 100, 101. Because the § 540.08(4)(b) exception only applies "where such person has consented to the use," Fla. Stat. § 540.08(4)(b), the exception may not apply here, as consent is a disputed issue....

...isappropriation and invasion of privacy concerning the motion picture The Perfect Storm (“the Picture”). The Tyne Plaintiffs contend that the district court erred in finding that Florida’s commercial misappropriation statute, see Fla. Stat. § 540.08 (1998), does not extend to this case....

...on their claim that the Picture’s portrayal of their father was so egregiously false and offensive as to allow them to bring a false light invasion of privacy claim, usually non- descendible, on their own behalf. Because we are unsure of the proper reach of Fla. Stat. § 540.08 in this context, we certify this question to the Florida Supreme Court. 1 The two Tyne children bring this appeal both in their individual capacities and on behalf of their deceased father, Frank William “Billy” Tyne, Jr....

...asion of privacy. In a May 9, 2002 Order, the district court granted Warner Bros.’s motion for summary judgment on all counts. The court found that (A) the term 4 “commercial purpose” in Fla. Stat. § 540.08’s was not meant to extend the statute’s reach to the use of an individual’s name or likeness in an expressive medium, and (B) the Picture did not fall into the narrow “relational right of privacy” exception to the general rule...

...DISCUSSION A. Commercial Purpose The Tyne Plaintiffs first allege error in the district court’s determination that Loft v. Fuller, 408 So. 2d 619, 622 (Fla. Dist. Ct. App. 4th Dist. 1981), controls this case and precludes the application of § 540.08 to the facts herein. Section 540.08 of the Florida Statutes prohibits the unauthorized use of a person’s2 name or likeness for “trade, commercial, or advertising purposes.” See Valentine v....

...portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use given by: 2 The statute also extends the right to sue under this prohibition to relatives of decedents. See Fla. Stat. § 540.08(1)(C). 5  (a) Such person; or (b) Any other person, firm or corporation authorized in writing by such person to license the commercial use of her or hi...

...rticles of merchandise or property where such person has consented to the use of her or his name, portrait, photograph, or likeness on or in connection with the initial sale or distribution thereof. Fla. Stat. § 540.08. 6  The issue before this Court is whether the Picture’s admittedly unauthorized use of the Tyne Plaintiffs’, and their relatives’, names and likenesses was “for trade, commercial, or advertising purposes,” as that phrase is used in § 540.08....

...A motion picture under the same title was released in 1978. Id. Both portrayed Mr. Loft as a ghost in accordance with the newspaper accounts. The Lofts argued that the unauthorized use of the decedent’s name (in the book and movie) and likeness (in the movie) violated Fla. Stat. § 540.08. Id. The Loft court disagreed and affirmed the trial court’s dismissal of the Lofts’ complaint with prejudice. 7  In reaching its conclusion, the Loft court held that § 540.08 “is designed to prevent the unauthorized use of a name to directly promote the product or service of the publisher.” Id. at 622-23 (emphasis supplied). The court found that the term “commercial,” as employed in § 540.08, “was [not] meant to be construed to bar the use of people’s names in [any] sweeping fashion.” Id. at 623. Rather, § 540.08 protects individuals from the unauthorized use of their names or likenesses solely in the context of an advertisement or promotion....

...Thus, they argue, the Picture’s representations were “knowingly false” and, therefore, not protected by the First Amendment. 8  The Tyne Plaintiffs also point out that applying Loft to this case presents several problems with regard to § 540.08. First, § 540.08(1) employs the phrase “any commercial or advertising purpose.” See Fla. Stat. § 540.08....

...2003) (“It is an elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage.”) (citation omitted). The Tyne Plaintiffs also contend that if § 540.08 were read to solely prevent the unauthorized use of a name to directly promote the product or service of the publisher, it would conflict with language in the statute’s two “exception” provisions. Specifically, § 540.08(3)(a) states that the statute does not apply to the use of a person’s name or likeness in news or other media if the use implicates 9 public interest and is not for an advertising purpose. See Fla. Stat. § 540.08(3)(a). Phrased positively, § 540.08(3)(a) asserts that the statute continues to apply to (i.e. consent is required for) the use of a person’s name or likeness in news or public interest settings that involve advertising. But if § 540.08(1) applies only to advertising or promotional purposes in all cases, then there would be no reason for § 540.08(3)(a) to limit the statute’s applicability to uses that involve news media “for advertising purposes.” Id. Subsection (3)(a)’s exemption provision would be unnecessary since all advertisements are covered by the main rule. Similarly, there would be no need for the second, “artistic works,” exemption. See § 540.08(3)(b). This provision states that § 540.08 does not apply to the use of a person’s name or likeness to resell/redistribute artistic works if the individual consented to the initial sale/distribution of the product. But it makes little sense for § 540.08(3)(b) to exempt the resale of artistic works if § 540.08(1) applies solely to advertisements. Thus, a narrow interpretation of § 540.08(1) as covering only uses that directly promote a product or service would render this second exemption superfluous. “Substantial doubt about a question of state law upon which a particular case turns should be resolved by certifying the question to the state supreme court.” Jones v. Dillard’s, Inc., - - F.3d - - (11th Cir. 2003). Because we are uncertain as to 10 the scope of § 540.08 and the applicability of the Loft decision in the circumstances presented here, we certify the following question of law to the Supreme Court of Florida: To what extent does Section 540.08 of the Florida Statutes apply to the facts of this case? In order to assist the court’s consideration of the case, the entire record, along with the briefs of the parties, shall be transmitted herewith to the Florida Supreme Court. B....

...ded to extend the exception to depictions that are merely inaccurate or dramatized. Accordingly, we conclude that the exception is inapplicable in this case. QUESTION CERTIFIED to the Florida Supreme Court regarding the scope of Fla. Stat. § 540.08. 14 

...perty rights protected by federal and state law. The instant Motion seeks summary judgment on four of the six Counts in the Complaint (DE 1). They are: Count I [1] (infringement of federally registered marks), Count IV (violation of Florida Statutes § 540.08), Count V (breach of contract), and Count VI (alter ego liability)....

...Florida law prohibits the display or other public "use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use." Fla. St. § 540.08(1)....

...Defendant's golf equipment. Informing the public that Daly, the "twice major winner and golfing superstar" that he is, will continue to be synonymous with Defendant directly promotes Defendant's products. Without his consent, that is what Fla. Stat. § 540.08 prohibits....

...ant's equipment. No consent was given for the use of Daly's name and likeness; thus, Plaintiff is entitled to judgment as a matter of law on the question of liability as to Count IV. On the question of damages for Defendant's violation of Fla. Stat. § 540.08, Plaintiffs offer the Declaration of John Mascatello, Daly's agent from 2004 through 2006....

...Alarcón, United States Circuit Judge for the Ninth Circuit, sitting by designation.  In our previous published opinion in this case, see Tyne v. Time Warner Entm’t Co. , 336 F.3d 1286 (11th Cir. 2003), we asked the Florida Supreme Court for guidance on the scope of section 540.08 of the Florida Statutes, and its application to this case. We certified the following question of law to the Court: To what extent does Section 540.08 of the Florida Statutes apply to the facts of this case? Id....

...at 1291. The Florida Supreme Court has now answered the certified question, see Tyne v. Time Warner Entm’t Co., 901 So. 2d 802 (Fla. 2005), rephrasing the certified 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? After analyzing the Florida cases interpreting section 540.08, including Loft v. Fuller, 408 So. 2d 619 (Fla. Dist. Ct. App. 1981), the opinion holds, as follows: [W]e answer the rephrased certified question in the negative and hold that the term “commercial purpose” as used in section 540.08(1) does not apply to publications, including motion pictures, which do not directly promote a product or service. We approve Loft’s construction of section 540.08....

...he Eleventh Circuit. This decision does not foreclose any viable claim that appellants may have under any other statute or under the common law. Tyne, 901 So. 2d at 810. 2  Because “section 540.08(1) does not apply to publications, including motion pictures, which do not directly promote a product or service,” id., and the motion picture in this case did not directly promote a product or service, plaintiffs’ statutory mis...

KLEIN, J. Appellant plaintiff sued the appellees for using his picture in an advertisement without his permission. He alleged invasion of privacy and a violation of section 540.08, Florida Statutes (2000), which imposes liability for using a person’s name or likeness in a commercial advertisement without consent....

PER CURIAM. Appellants, Sun International Hotels, Ltd., et al. [Sun], appeal a final judgment entered pursuant to a jury verdict awarding $14,000.00 in compensatory damages and $250,000.00 in punitive damages under section 540.08, Florida Statutes (1997), for the unauthorized use of Appellee Robert Wagner’s photographs....

...For the reasons explained below, we hold that the two posts, although identical, do not constitute a single publication and reverse. Factual and Procedural Background On May 15, 2020, Ms. Swedberg filed the instant action alleging violation of section 540.08, Florida Statutes, for the unauthorized publication of name/likeness (Count I); violation of common law right of publicity (Count 2 II); conversion (Count III); and unjust enrichment (Count IV)....

...This broad language includes misappropriation of a likeness for commercial purposes. Miller v. Anheuser Busch, Inc., 348 F. App'x 547, 550 (11th Cir. 2009) (“Florida applies the ‘single publication rule’ in misappropriation cases brought under Fla. Stat. § 540.08 ....

...See 2 “This Court reviews de novo whether a party should be allowed to plead a punitive damages claim.” Friedler v. Faena Hotels & Residences, LLC, 390 So. 3d 186, 187 n.1 (Fla. 3d DCA 2024). 3 WFTV, Inc. v. Hinn, 705 So. 2d 1010, 1011 (Fla. 5th DCA 1998) (“Section 540.08(2), Florida Statutes (1997) authorizes recovery of punitive damages, but does not provide any procedure by which such claim may be pled. . . . [S]ections 540.08 and 768.72 should be read together. Although section 540.08 allows for the recovery of punitive damages, the procedure enacted by the legislature in section 768.72 must be followed.”); State Capital Ins. Co....

...l misappropriation and invasion of privacy concerning the motion picture The Perfect Storm (“the Picture”). The Tyne Plaintiffs contend that the district court erred in finding that Florida’s commercial misappropriation statute, see Fla. Stat. § 540.08 (1998), does not extend to this case....

...the Picture’s portrayal of their father was so egregiously false and offensive as to allow them to bring a false light invasion of privacy claim, usually non-descendible, on their own behalf. Because we are unsure of the proper reach of Fla. Stat. § 540.08 in this context, we certify this question to the Florida Supreme Court....

...opriation law and for common law false light invasion of privacy. In a May 9, 2002 Order, the district court granted Warner Bros.’s motion for summary judgment on all counts. The court found that (A) the term “commercial purpose” in Fla. Stat. § 540.08 was not meant to extend the statute’s reach to the use of an individual's name or likeness in an expressive medium, and (B) the Picture did not fall into the narrow “relational right of privacy” exception to the general rule that false light claims are non-descendible. II. DISCUSSION A. Commercial Purpose The Tyne Plaintiffs first allege error in the district court’s determination that Loft v. Fuller, 408 So.2d 619, 622 (Fla.Dist.Ct.App. 4th Dist.1981), controls this case and precludes the application of § 540.08 to the facts herein. Section 540.08 of the Florida Statutes prohibits the unauthorized use of a person’s 2 name or likeness for “trade, commercial, or advertising purposes.” See Valentine v....

...ical, or artistic productions or other articles of merchandise or property where such person has consented to the use of her or his name, portrait, photograph, or likeness on or in connection with the initial sale or distribution thereof. Fla. Stat. § 540.08 . The issue before this Court is whether the Picture’s admittedly unauthorized use of the Tyne Plaintiffs’, and their relatives’, names and likenesses was “for trade, commercial, or advertising purposes,” as that phrase is used in § 540.08....

...A motion picture under the same title was released in 1978. Id. Both portrayed Mr. Loft as a ghost in accordance with the newspaper accounts. The Lofts argued that the unauthorized use of the decedent’s name (in the book and movie) and likeness (in the movie) violated Fla. Stat. § 540.08 . Id. The Loft court disagreed and affirmed the trial court’s dismissal of the Lofts’ complaint with prejudice. In reaching its conclusion, the Loft court held that § 540.08 “is designed to prevent the unauthorized use of a name to directly promote the product or service of the publisher.” Id. at 622-23 (emphasis supplied). The court found that the term “commercial,” as employed in § 540.08, “was [not] meant to be construed to bar the use of people’s names in [any] sweeping fashion.” Id. at 623. Rather, § 540.08 protects individuals from the unauthorized use of their names or likenesses solely in the context of an advertisement or promotion....

...abricated. Thus, they argue, the Picture’s representations were “knowingly false” and, therefore, not protected by the First Amendment. The Tyne Plaintiffs also point out that applying Loft to this case presents several problems with regard to § 540.08. First, § 540.08(1) employs the phrase “any com *1291 mercial or advertising purpose.” See Fla. Stat. § 540.08 ....

...ion that significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplus-age.”) (citation omitted). The Tyne Plaintiffs also contend that if § 540.08 were read to solely prevent the unauthorized use of a name to directly promote the product or service of the publisher, it would conflict with language in the statute’s two “exception” provisions. Specifically, § 540.08(3)(a) states that the statute does not apply to the use of a person’s name or likeness in news or other media if the use implicates public interest and is not for an advertising purpose. See Fla. Stat. § 540.08 (3)(a). Phrased positively, § 540.08(3)(a) asserts that the statute continues to apply to (i.e. consent is required for) the use of a person’s name or likeness in news or public interest settings that involve advertising. But if § 540.08(1) applies only to advertising or promotional purposes in all cases, then there would be no reason for § 540.08(3)(a) to limit the statute’s applicability to uses that involve news media “for advertising purposes.” Id. Subsection (3)(a)’s exemption provision would be unnecessary since all advertisements are covered by the main rule. Similarly, there would be no need for the second, “artistic works,” exemption. See § 540.08(3)(b). This provision states that § 540.08 does not apply to the use of a person’s name or likeness to resell/redistribute artistic works if the individual consented to the initial sale/distribution of the product. But it makes little sense for § 540.08(3)(b) to exempt the.resafe of artistic works if § 540.08(1) applies solely to advertisements. Thus, a narrow interpretation of § 540.08(1) as covering only uses that directly promote a product or service would render this second exemption superfluous....

...“Substantial doubt about a question of state law upon which a particular case turns should be resolved by certifying the question to the state supreme court.” Jones v. Dillard’s, Inc., 331 F.3d 1259 (11th Cir.2003). Because we are uncertain as to the scope of § 540.08 and the applicability of the Loft decision in the circumstances presented here, we certify the following question of law to the Supreme Court of Florida: To what extent does Section 510.08 of the Florida Statutes apply to the facts of this...

...acy, intended to extend the exception to depictions that are merely inaccurate or dramatized. Accordingly, we conclude that the exception is inapplicable in this case. QUESTION CERTIFIED to the Florida Supreme Court regarding the scope of Fla. Stat. § 540.08 ....

...k William "Billy” Tyne, Jr. Similarly, Murphy appeals in his individual capacity and on behalf of his deceased father, Dale R. Murphy, Sr. . The statute also extends the right to sue under this prohibition to relatives of decedents. See Fla. Stat. § 540.08 (1)(C)....

...ntire matter of the son jumping bond was an event in which the public had a legitimate interest, to wit: securing a criminal fugitive’s, arrest, as to which the subject publication played a useful role in properly identifying the fugitive; and (c) Section 540.08, Florida Statutes (1983) has no application to this case because the defendants’ wanted poster fell within the exemption provisions of subsection (3)(a) of the above statute....

...According to the court’s findings, the use of the Ritenours’ names, likenesses, creation of the johnritenour.com web site, and utilizing the IOA logo was done by Appellants without permission from Appellees and constituted a violation of section 540.08, Florida Statutes (2020)....

...and to harm IOA's business by misleading the public as to when and why the incident occurred. To the extent that Appellants were using the mugshot to further their own commercial interests, as the trial court found, the injunction is specifically authorized by section 540.08, which states in pertinent part: (1) No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other liken...

...Farrow’s law firm or for himself personally. To the extent that Appellants are using John Ritenour’s, Heath Ritenour’s or Valli Ritenour’s name and likeness “for purposes of trade or for any commercial or advertising purpose” without their permission, it would appear to violate section 540.08, Florida Statutes, and that could be enjoined. However, the above-quoted paragraph from the temporary injunction says that only “some” were used for advertising; thus, there is no basis under section 540.08 to completely ban Appellants’ actions and communication. “An injunction should never be broader than is necessary to secure to the injured party relief warranted by the circumstances involved in the particular case.” Chevaldina v....

...Appellants have used its duly registered trademark without authorization, the injunction is affirmed. The fifth paragraph enjoining Appellants’ actions states: 5. The Court is enjoining any actions in violation of either Sections [540.08] and 817.568, Florida Statutes....

...Farrow, Farrow Law, and Spagnuolo are enjoined, and thereby required to remove from public circulation, all statements or communications that they have posted about IOA or any of the other Plaintiffs that are false and would mislead the public or violate Sections [540.08] and 817.568, Florida Statutes. This eighth paragraph suffers the same infirmity as the first paragraph, to the extent that it refers only to and requires removal of false or misleading communications....

...matters they must seek to remove where possible, such as the false claims that IOA has or is at risk of losing its insurance license. Likewise, to the 24 extent this eighth paragraph requires Appellants to remove content that violates section 540.08, they are entitled to be advised of the specific materials, such as Heath Ritenour’s old mugshot and the johnritenour.com website, that fall within the affirmative injunction....

...According to the court’s findings, the use of the Ritenours’ names, likenesses, creation of the johnritenour.com web site, and utilizing the IOA logo was done by Appellants without permission from Appellees and constituted a violation of section 540.08, Florida Statutes (2020)....

...and to harm IOA's business by misleading the public as to when and why the incident occurred. To the extent that Appellants were using the mugshot to further their own commercial interests, as the trial court found, the injunction is specifically authorized by section 540.08, which states in pertinent part: (1) No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other liken...

...Farrow’s law firm or for himself personally. To the extent that Appellants are using John Ritenour’s, Heath Ritenour’s or Valli Ritenour’s name and likeness “for purposes of trade or for any commercial or advertising purpose” without their permission, it would appear to violate section 540.08, Florida Statutes, and that could be enjoined. However, the above-quoted paragraph from the temporary injunction says that only “some” were used for advertising; thus, there is no basis under section 540.08 to completely ban Appellants’ actions and communication. “An injunction should never be broader than is necessary to secure to the injured party relief warranted by the circumstances involved in the particular case.” Chevaldina v....

...Appellants have used its duly registered trademark without authorization, the injunction is affirmed. The fifth paragraph enjoining Appellants’ actions states: 5. The Court is enjoining any actions in violation of either Sections [540.08] and 817.568, Florida Statutes....

...Farrow, Farrow Law, and Spagnuolo are enjoined, and thereby required to remove from public circulation, all statements or communications that they have posted about IOA or any of the other Plaintiffs that are false and would mislead the public or violate Sections [540.08] and 817.568, Florida Statutes. This eighth paragraph suffers the same infirmity as the first paragraph, to the extent that it refers only to and requires removal of false or misleading communications....

...matters they must seek to remove where possible, such as the false claims that IOA has or is at risk of losing its insurance license. Likewise, to the 24 extent this eighth paragraph requires Appellants to remove content that violates section 540.08, they are entitled to be advised of the specific materials, such as Heath Ritenour’s old mugshot and the johnritenour.com website, that fall within the affirmative injunction....

...g of legitimate inferences from the facts are jury functions, not those of a judge." Anderson, 477 U.S. at 255, 106 S.Ct. 2505. III. Analysis Plaintiff Miller alleges that Defendant Anheuser Busch misappropriated her image in violation of Fla. Stat. § 540.08, entitled "Unauthorized publication of name or likeness." In the Motion for Summary Judgment, Defendant argues that Plaintiff's claim is time-barred by the statute of limitations and that Plaintiff's claim fails under Fla. Stat. § 540.08 because she consented to the use of her photographs being used in Defendant's advertising campaigns....

...wed by federal courts in diversity actions." Cambridge Mut. Fire Ins. Co. v. City of Claxton, Ga., 720 F.2d 1230, 1232 (11th Cir. 1983). I therefore apply Florida statute of limitations law to Plaintiff's claim. Under Florida law, because Fla. Stat. § 540.08 does not provide its own statute of limitations and does not fall within any of the specific categories provided in Fla....

...ovided for in these statutes."). This four-year period begins to run at the date of publication (not at discovery of publication). See Putnam Berkley Group, Inc. v. Dinin, 734 So.2d 532, 536 (Fla. 4th DCA 1999) (holding that actions under Fla. Stat. § 540.08 must be brought within four years of the accrual of the cause of action, not four years of discovery of the fact of publication)....

...se campaigns. Accordingly, I conclude that Plaintiffs action is time barred by the statute of limitations. Even if Plaintiffs action were timely filed, her commercial misappropriation claim would fail on the merits, as discussed below. B. Fla. Stat. § 540.08 In her Second Amended Complaint, Plaintiff alleges that "Defendant used and exploited the image of Plaintiff in its nationwide commercial advertising campaign for Budweiser Beer without consent of the Plaintiff," in violation of Fla. Stat. § 540.08. (Second Amended Complaint, DE 36, pp. 3-4). Fla. Stat. § 540.08 states, in relevant part: (1) No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use given by: (a) Such person ......

...may bring an action to enjoin such unauthorized publication, printing, display or other public use, and to recover damages for any loss or injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive or exemplary damages.... Fla. Stat. § 540.08 (emphasis added)....

...Congress clearly has expressed an intent contrary to that suggested by the plain language, or when absurd results would ensue from adopting the plain language interpretation."). Therefore, as provided by the plain language of the statute, Fla. Stat. § 540.08 provides relief for commercial misappropriation only if the party whose image is being appropriated does not consent to the image's use....

...use my likeness and photograph, in whole or in part." (DE 168-2, p. 30). Because it is undisputed that Plaintiff gave express consent to Defendant to use the photographs at issue, Plaintiff's commercial misappropriation claim fails under Fla. Stat. § 540.08....

...However, there is no dispute that Plaintiff signed the first page of the 2001 Model Release, and the information contained in the second and third pages is not material to my bases for granting summary judgment, namely the statute of limitations and liability under Fla. Stat. § 540.08....

...ages. White these facts may be material to a breach of contract claim or to computation of damages, these facts are immaterial to the grounds upon which I am granting summary judgment, namely the statute of limitations and liability under Fla. Stat, § 540.08, and I therefore do not include them in this Order....

...§ 1332(a)(1). 11 Thione also counterclaimed for “trademark infringement,” “unfair competition,” and “false advertising and deceptive trade practices” under the Lanham Act, 15 U.S.C. § 1125(a), and for the “violation of [the] right of publicity” under Fla. Stat. § 540.08 and common law....

...urt finds that CEC is entitled to judgment as a matter of law on these counterclaims and third-party claims. a. Commercial Misappropriation Counterclaim In Counterclaim 6, McClary asserts a claim for commercial misappropriation under Florida Statute § 540.08(1). Section 540.08(1) prohibits a person from "publish[ing], print[ing], display[ing] or otherwise publicly [using] for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural purpos...

PER CURIAM. Affirmed. See Binger v. King Pest Control, 401 So.2d 1810 (Fla.1981); Genesis Publications, Inc. v. Goss, 437 So.2d 169 (Fla. 3d DCA 1983), rev. denied, 449 So.2d 264 (Fla.1984); Green v. Shoop, 240 So.2d 85 (Fla. 3d DCA 1970); § 540.08, Fla.Stat....