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Associated PressIn the 2000 movie The Perfect Storm, actor George Clooney portrayed Capt. Billy Tyne, whose survivors are among those suing the filmmakers.
TALLAHASSEE - It may have been The Perfect Storm. But it wasn't perfectly true.
The movie starring George Clooney about the epic 1991 storm that killed the crew of the fishing boat Andrea Gail off New England was partly fictionalized, and the survivors of Clooney's character, Capt. Billy Tyne, and crewman Dale "Murph" Murphy, are suing the film's makers, accusing them of using the men's likenesses for commercial purposes without their consent.
The families, who live in Bradenton, have seen their claims rejected at trial and by an appeals court. Wednesday, they took their arguments to the Florida Supreme Court, hoping to win an order for the case to sent back to a trial judge.
Lawyers for Warner Bros., which made the 2000 blockbuster movie, argue that Florida law has been interpreted to say that "commercial" speech is only intended to refer to speech aimed at selling a product, not telling a story.
But even if the film were considered commercial, Warner Bros. argues it is protected under the First Amendment because it depicted an event of wide newsworthiness.
But lawyers for Tyne's daughters, Erica and Billy-Jo Tyne, and Murphy's son, Dale Murphy Jr. and Murphy's ex-wife, Debra Tigue, argued that making a movie was clearly a commercial venture.
"The only obligation that a filmmaker has is the same obligation that every other publisher in America has, and that is to avoid culpable falsehood," said Stephen Calvacca, the families' attorney.
He told the justices that the makers of The Perfect Storm failed to do that.
Filmmakers acknowledge they fictionalized parts of the movie.
But lawyers for the men's survivors say the story was hyped as true, and did well because of the buzz surrounding the "true story."
Warner Bros. argues the film never held itself out as totally accurate, pointing in court papers to this disclaimer in the closing credits: "Dialogue and certain events and characters in the film were created for the purpose of dramatization."
The justices spent much of the time Wednesday asking about whether the film should be considered as falling under the definition of "commercial," because the survivors are suing under a law barring the use of someone's likeness without their consent when it is for "commercial" purposes.
The families argue the picture, which grossed $150-million, is clearly a commercial endeavor, but studio lawyer Gregg Thomas said just because the movie made money didn't mean it wasn't protected speech.
"Books and movies and music in our society are protected by the First Amendment and they always have been," Thomas said after the hearing. "The courts say that profit does not matter."
Calvacca said the families don't have any claim against the best-selling book by Sebastian Junger on which the movie was based, because Junger stuck to what was known.
"As painful as the book was, it was a true story," Calvacca said.
Calvacca said that if the case is reinstated by the Supreme Court, it would likely go back to a trial judge. He said the families hadn't determined a specific amount of damages they were seeking.