Erica Tyne v. Time Warner Entertainment

                                                                                   [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________                           FILED
                                                                      U.S. COURT OF APPEALS
                                     No. 02-13281                       ELEVENTH CIRCUIT
                                                                          September 26, 2005
                               ________________________
                                                                         THOMAS K. KAHN
                                                                               CLERK
                       D. C. Docket No. 00-01115-CV-ORL-22C

ERICA TYNE, individually and on behalf of Frank
William "Billy" Tyne, Jr.,
BILLIE-JO FRANCIS TYNE, individually and on
behalf of Frank William "Billy" Tyne, Jr., ET AL.
                                                                        Plaintiffs-Appellants,


                                            versus

TIME WARNER ENTERTAINMENT COMPANY, L.P.,
d.b.a. Warner Bros. Picture,
BALTIMORE/SPRING CREEK PICTURES, L.L.C.,
a Delaware limited liability company, ET AL.
                                                                      Defendants-Appellees.
                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                           _________________________
                                (September 26, 2005)

Before BARKETT, MARCUS AND ALARCÓN*, Circuit Judges.

PER CURIAM:

*
 Honorable Arthur L. 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. We, however, note that our decision is limited
      only to answering the rephrased question certified by the 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 misappropriation claims were properly dismissed.

      The district court’s order granting summary judgment is AFFIRMED.




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