Here are a couple of cases that deal with aspects of this.
[spoiler]Jane Doe v. John Roe, as father and next friend of A, B, and C, minor children
1921382
SUPREME COURT OF ALABAMA
638 So. 2d 826; 1994 Ala. LEXIS 96; 22 Media L. Rep. 1427
March 4, 1994, Released
JUDGES: Hornsby, C.J., and Shores, Steagall, Ingram, and Cook, JJ., concur.
OPINION BY: PER CURIAM
OPINION
[*826] PER CURIAM.
The defendant, Jane Doe, appeals from a judgment permanently enjoining distribution of her novel portraying the mur-der of the natural mother of plaintiff John Roe’s adoptive children. We reverse and remand.
I. Facts
In 1984, the natural mother of Roe’s adoptive children was murdered by their natural father. The man dismembered his wife’s body and buried it under a fish pond in the back yard of the family’s home. When her body was discovered ap-proximately three [*827] years later, the event and the resulting trial received much publicity. The children’s natural father was convicted and is now serving a life sentence in the penitentiary.
After the children’s natural father was arrested for the murder of their mother, they remained in the custody of relatives for more than a year. Later, they were adopted by John Roe and his wife, who lived in another area of the state. The children moved [**2] to the home of their adoptive parents about a month before the trial of their natural father, and since that time they have been undergoing counseling to enable them to lead normal lives.
Doe wrote a novel based upon the events of the murder. She contacted various commercial publishers, but none was interested in publishing her book. She then invested her own money in publishing the book. She had approximately 1,000 copies printed in hopes that she could distribute the book herself. Roe learned of Doe’s plan to distribute this book. As next friend of his minor adoptive children, Roe filed a complaint for an injunction against the distribution of the book.
The trial court entered a temporary restraining order, finding that the minor children were “likely to suffer an unlawful invasion of their privacy and mental solitude with resulting irreparable mental and emotional injuries” if the novel was distributed. On September 18, 1992, the trial court, after a hearing, entered a preliminary injunction. Although the par-ties had agreed that the September 18 hearing would constitute a final hearing, Doe, who was proceeding pro se, was given two weeks to secure counsel. Doe took no further [**3] action within the time allowed, and the court perma-nently enjoined the distribution of the book.
Doe subsequently obtained counsel. Her counsel filed a motion to set aside the order, but it was denied by operation of law. Thus, Doe appeals.
B. Putting the Plaintiff in a False, But Not Necessarily
Defamatory, Position in the Public Eye.
Roe also argues that the novel contains false and misleading statements that place his children in a false light. He main-tains that in this novel Doe portrays the children as unknowingly spending several days and nights living in their home in close proximity to their mother’s dismembered body. Roe further asserts that in the novel [*829] Doe attributes to the oldest child a hatred for the natural mother. He states [**9] that his daughter never felt this way about her mother. Roe argues that the false narration of events, along with the erroneous portrayal of his daughter, places his children in a false light.
In Bell v. Birmingham Broadcasting Co., 266 Ala. 266, 96 So. 2d 263 (1957), this Court held that [HN4] the mere fact that a person is a public character or a legitimate subject of news comment does not justify misleading publicity or mis-representation. However, where a fictitious work, using the names or attributes of real people, is clearly presented as fiction, this Court like other courts, must extend to it the constitutionally guaranteed freedom of speech.
In Leopold v. Levin, 45 Ill. 2d 434, 259 N.E.2d 250 (1970), the plaintiff sued the author, publishers, and distributors of a novel and play for “false light” invasion of privacy. The plaintiff asserted that the novel and play, which narrated the events of a kidnapping and murder that he and another man had committed, placed him a false light. The Illinois Su-preme Court held that there was no “false light” invasion of privacy because the novel and play [**10] were character-ized as fictional, dramatized materials and were not represented to be otherwise. Similarly, there is no “false light” inva-sion of privacy in this case because Doe properly represents her book to be a novel, a fictionalized work, and nothing more.
In Hicks v. Casablanca Records, 464 F. Supp. 426 (S.D.N.Y. 1978), the heirs and assignees of mystery writer Agatha Christie sued to enjoin movie producers and a book publisher from distributing a motion picture and a book presenting a fictionalized account of an incident in the writer’s life. The district court ruled that there was no “false light” invasion of privacy, because the reader of the novel would know that the work was fictitious by the presence of the word “novel.” There is no “false light” invasion of privacy in this case, because the work is presented as a “novel”; it is intentionally and properly characterized as a work of fiction.
Roe also asserts that if the book were truly a book of fiction, then the disclaimer “The events and characters in this book are fictional; any similarity to persons living or dead is purely coincidental” would apply and should be provided with the book. [**11] We disagree. Oxford English Dictionary, Vol. VII, p. 241, Clarendon Press (1961), defines “novel” as “[a] fictitious prose narrative or tale of considerable length … in which characters and actions representative of the real life of past or present times are portrayed in a plot of more or less complexity.” This book is clearly classified and represented as a novel, which the general public understands to be a fictitious work representative of real life. Thus, we do not find that a disclaimer is needed.
IV. Conclusion
The court erred in enjoining the distribution of defendant Doe’s novel. Doe’s freedom [*830] of speech is guaranteed by Article I, § 4, of the Alabama Constitution. Although she may not exercise that right in a manner that will injure the children’s right to privacy, we do not find that the distribution of this novel, based on events of public interest, will vio-late that right of the children. Moreover, because [**13] this novel is based on events already in the public records, we deny Roe’s motion to seal the record in this appeal. Accordingly, the judgment is reversed and the cause is remanded for an order or action consistent with this opinion.
MOTION TO SEAL RECORD DENIED; REVERSED AND REMANDED.
Hornsby, C.J., and Shores, Steagall, Ingram, and Cook, JJ., concur. [/spoiler] (disclaimer not necessary if work is clearly fiction).
[spoiler]OCEAN BIO-CHEM, INC., Plaintiff, v. TURNER NETWORK TELEVISION, INC., TURNER BROADCASTING SYSTEM, INC., and FARRELL/MINOFF PRODUCTIONS, Defendants
No. 90-6044-CIV
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
741 F. Supp. 1546; 1990 U.S. Dist. LEXIS 8490; 16 U.S.P.Q.2D (BNA) 1264; 18 Me-dia L. Rep. 1337
July 2, 1990, Decided
JUDGES: Kenneth L. Ryskamp, United States District Judge.
OPINION BY: RYSKAMP
OPINION
[*1551] MEMORANDUM ORDER KENNETH L. RYSKAMP, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
THIS MATTER is before the court on the parties’ motions. Plaintiff Ocean Bio-Chem, Inc. (“Ocean”) moved for a pre-liminary injunction, pursuant to Federal Rule of Civil Procedure 65, and defendants Turner Network Television, Inc., Turner Broadcasting System, Inc., and Farrell/Minoff Productions oppose that motion. Defendants moved to dismiss Ocean’s complaint for lack of subject matter jurisdiction and for failure to state a claim on which relief can be granted, pursuant to Rules 12(b)(1) and 12(b)(6); or, in the alternative, for summary judgment, pursuant to Rule 56. The court heard argument from the parties, and thereafter Ocean moved for leave to file a supplemental affidavit and letter regard-ing its motion for a preliminary injunction and for a supplemental hearing on that motion.
The court grants Ocean’s motion for leave to file a supplemental affidavit and letter. However, a supplemental hearing is unnecessary, and the court thus denies that motion. For the reasons [**2] discussed below, the court denies Ocean’s motion for a preliminary injunction, denies defendants’ motion to dismiss the complaint, and grants defendants’ alterna-tive motion for summary judgment as to Count I of the complaint. The court declines to exercise pendent jurisdiction over the state claims presented by Counts II and III of the complaint and thus dismisses those counts.
II. BACKGROUND AND PROCEDURAL HISTORY
Ocean’s three-count complaint against defendants alleges (1) misrepresentation of its trademark and trade name in viola-tion of 15 U.S.C. § 1125(a) (1988), the codification of the Lanham Trade-Mark Act; 1 (2) injury to business reputation in violation of Fla.Stat. § 495.151 (1989); and (3) dilution of trademark and trade name in violation of Fla.Stat. § 495.151 (1989). Ocean alleges that it was injured when defendant Turner Network Television, Inc. broadcast “Incident at Dark River,” a fictional television movie produced by defendant Farrell/Minoff Productions. The movie, first broad-cast December 4, 1989, portrayed a father’s anguish over his daughter’s death, which was caused by the river pollution of a company called "Starbrite Batteries. [**3] " The movie was aired four times before this action was filed.
1 In this circuit, some question exists as to whether trade names are protected by the Lanham Act. American Television and Communications Corp. v. American Communications and Television, Inc., 810 F.2d 1546, 1548 n. 1 (11th Cir. 1987). In American Television and Communi-cations Corp., the Eleventh Circuit declined to resolve an apparent conflict in the case law, because the district court required that the plain-tiff prove its trade name acquired secondary meaning under either § 1125 or Florida common law. In this case, Ocean has not attempted to prove that its trade name has acquired secondary meaning or to argue that § 1125 protects trade names. Accordingly, the court focuses on whether defendants’ use of Starbrite Batteries as the tradename of a fictional company infringes on Ocean’s trademark.
Ocean does not produce batteries. But from November 1973 until October 1974, Ocean existed as Star Brite Corpora-tion; its wholly-owned [**4] subsidiary Star Brite Distributing, Inc. still uses that name. Ocean claims to market 168 different products under the Star Brite trademark, including marine and automotive cleaners and polishes. Star Brite products, which have been sold since 1972, are alleged to approximate seventy percent of the market share of polishes for boats and recreational vehicles.
Although “Incident at Dark River” was a movie about a battery manufacturer, Ocean alleges that defendants’ movie made use of its trade name and trademark and created a likelihood of confusion with its products. Specifically, Ocean alleges that [*1552] the movie makes repeated reference to the fictional company as merely Star Brite, instead of Star Brite Batteries, and portrays the Star Brite trademark visually in two scenes, in a sign over a factory gate and in a news-paper headline.
Beyond creating a likelihood of confusion, Ocean claims that the movie has already created actual confusion, as one potential customer has refused to purchase products from Ocean because “it was dumping toxic chemicals into a river.” According to Ocean’s president, the false impression created by the television movie unfairly injured its [**5] business reputation and diluted its trademark, because the company has exercised care to be environmentally conscious.
Ocean seeks an injunction against future broadcasts of the movie. The Turner Network has delayed additional broad-casts pending the outcome of this litigation, although the movie is scheduled for distribution on the home video market in October 1990 and is being considered for possible international syndication.
Defendants oppose Ocean’s motion for an injunction, arguing that Ocean cannot succeed on its claims. Defendants also move to dismiss the complaint or, in the alternative, for summary judgment.
- The defendants’ intent. [HN21] If Ocean could show that defendants adopted its mark with “the intent of deriving benefit” from Ocean’s reputation, “that fact alone ‘may be sufficient to justify the inference that there is a confusing similarity’” between the marks. John H. Harland Co., 711 F.2d at 977. [**27] In this case, however, all indications are that defendants intended to portray an entirely fictional company in their movie and did not intend to misuse Ocean’s trademark.
] Second, defendants broadcast three specific disclaimers during the movie, which stated that it did not portray any one company and, in particular, did not portray Ocean. 6 The fact that defendants affixed [*1558] these disclaimers before the initial broadcast weighs in their favor. LeSportSac Inc. v. K Mart Corp., 754 F.2d 71, 80 (2d Cir. 1985) (equities in likelihood of confusion test under § 1125(a) different if tags affixed to handbags when first offered for sale).
6 The disclaimer, in its entirety, reads as follows:
Please be advised neither the incidents or individuals portrayed in “Incident at Dark River” are based upon or intended to refer to any actual persons, companies, products, or events.
In particular, all references in this film to “Starbrite” are not intended to refer to Ocean Bio-Chem, Inc., its subsidiaries, Star Brite Distributing, Inc., and Star Brite Distributing Canada, Inc., or its product, “Star Brite”.
All such references to any such person, companies, or products is purely coincidental.
- Actual confusion that exists. [HN22] Although actual confusion is not necessary for the Lanham Act to be violated, actual confusion is perhaps the best evidence that there is a likelihood of confusion between two trademarks. John H. Harland Co., 711 F.2d at 978. Even when a disclaimer is used, the critical question remains whether the disclaimer effectively dispels a likelihood of confusion and whether actual confusion still exists. University of Georgia Athletic Ass’n v. Laite, 756 F.2d 1535, 1547 (11th Cir. 1985) (rejecting argument that disclaimer eliminated confusion, because disclaimer relatively inconspicuous and infringing use exactly duplicated team [**30] symbol and sold as team em-blem); see also LeSportSac Inc., 754 F.2d at 80 (proposed tag on handbag, disclaiming association with plaintiff, re-movable and did not eliminate likelihood of confusion); Wendy’s Int’l, Inc. v. Big Bite, Inc., 576 F. Supp. 816, 825 (S.D. Ohio 1983) (surveys showed that disclaimer did not dispel confusion regarding hamburgers). [/spoiler] (disclaimer helpful, but not dispositive)