TALLAHASSEE, Fla. (AP) – 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. They took their arguments to the Florida Supreme Court tjos weel, 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.

“We don’t think this statute was ever intended to include expressive works,” studio lawyer Gregg Thomas told the justices, referring to the law under which the families are suing.

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.

And, they argued, if commercial speech is to get protection on free speech grounds because of newsworthiness, the work in question can’t include made-up material, unless the movie is labeled as fiction.

“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.

In earlier depositions in the case, Perfect Storm director Wolfgang Petersen admitted that parts of the story were changed from the nonfiction book on which it was based.

“You might have a story that is accurate but not dramatic,” Petersen told lawyers. “If you just go with the facts, very often, very, very often, you get a film that doesn’t really get into your heart.”

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.”

“When you sensationalize someone’s life … to increase your profit, that’s the ultimate wrong,” said Calvacca. “And they want simply recognition that Warner made a mistake.”

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.”

Warner lawyers also cited several previous cases where courts said free speech protection didn’t depend on whether the work was fictional.

The justices spent much of the time Wednesday asking 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’s for “commercial” purposes.

The families argue the picture, which grossed $150 million, is clearly a commercial endeavor, but 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.

Family members didn’t attend the hearing.

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.

AP-ES-02-07-04 1222EST