Lawsuit for Alleged Unauthorized Publication of a Name In Florida
In Loft v. Fuller, 408 So. 2d 619 (Fla. 4th DCA 1981), D.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, R.Loft.
R.Loft had been the captain of an Eastern Airlines flight that crashed while en route from New York to Miami in 1972.
The crash was followed by reports of the appearance of apparitions of the flight's crew members, including R.Loft, on subsequent flights.
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.
Thus, the publication is harmful not simply because it is included in a publication that is sold for a profit, but rather because of the way it associates the individual's name or his personality with something else.
While the Court agreed that at least one of the purposes of the author and publisher in releasing the publication in question was to make money through sales of copies of the book and that such a publication is commercial in that sense, this 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.
The Court 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.
The Court also believed 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, the Court needs 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.