Court Distinguishes Works of Artistic Expression from Pure Commercial Speech In Commercial Misappropriation Claim Based on a Motion Picture
In Seale v. Gramercy Pictures, 949 F. Supp. 331 (E.D. Penn. 1996), a federal court in Pennsylvania considering a commercial misappropriation claim based on a motion picture that dramatized a historical event expressly distinguished motion pictures from pure commercial speech:
"In addressing right of publicity claims, courts have been mindful that the First Amendment provides greater protection to works of artistic expression such as movies, plays, books, and songs, than it provides to pure 'commercial' speech." Id. at 337.
The Court thus concluded that the plaintiff failed to raise a genuine issue of material fact showing that the defendant's use of the name and likeness in the film and on the cover of the home video was "for the purposes of trade" or "for a commercial purpose":
The Defendants' use of the Plaintiff's name and likeness was for the purpose of First Amendment expression: the creation, production, and promotion of a motion picture and history book which integrates fictitious people and events with the historical people and events surrounding the emergence of the Black Panther Party in the late 1960's.
The Defendants' use of the Plaintiff's name and likeness on the cover of the pictorial history book and on the cover for the home video are clearly related to the content of the book and the film, the subject matter of which deals with the Black Panther Party and the Plaintiff's role as co-founder of the Party.
The Defendants are entitled to judgment as a matter of law as to Plaintiff's right of publicity claim insofar as that claim relates to Defendants' use of Plaintiff's name and likeness in the film, pictorial history book, and on the cover of the home video. Id.
The Supreme Court of Florida has an obligation to give a statute a constitutional construction where such a construction is possible.
The Supreme Court of Florida has stated that it is committed to the fundamental principle that it has the duty if reasonably possible, and consistent with constitutional rights, to resolve doubts as to the validity of a statute in favor of its constitutional validity and to construe a statute, if reasonable possible, in such a manner as to support its constitutionality--to adopt a reasonable interpretation of a statute which removes it farthest from constitutional infirmity. Corn v. State, 332 So. 2d 4, 8 (Fla. 1976);
Sandlin v. Criminal Justice Standards & Training Comm'n, 531 So. 2d 1344, 1346 (Fla. 1988);
Industrial Fire & Casualty Ins. Co. v. Kwechin, 447 So. 2d 1337 (Fla. 1983);
Department of Ins. v. Southeast Volusia Hosp. Dist., 438 So. 2d 815 (Fla. 1983).