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Court protects magazine's spoof photo spread

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  1. Libel and Privacy

    NMU         CALIFORNIA         Privacy         Jul 9, 2001    

Court protects magazine’s spoof photo spread

  • Actor Dustin Hoffman is not entitled to a $3 million award over right-of-publicity claims prompted by a computer-enhanced image of the actor published in Los Angeles Magazine published, a federal appeals court decided.

A celebrity does not have a publicity right in photographs used to illustrate a magazine article on new fashions, the U.S. Court of Appeals in Pasadena, Calif., (9th Cir.) ruled on July 6. The court determined that actor Dustin Hoffman’s right of publicity was superceded by a local magazine’s First Amendment rights.

The court reversed a $3 million verdict from a federal judge in Los Angeles who ordered Los Angeles Magazine to pay Hoffman $1.5 million in compensatory damages and $1.5 million in punitive damages in January 1999. The magazine had published without permission a photograph of Hoffman as he appeared in the publicity still for “Tootsie.” The magazine, through computer imaging, added a different dress and heels to the photograph.

Federal district court Judge Dickran Tevrizian had concluded that the magazine violated Hoffman’s common law right of publicity, his statutory right of publicity under California law, the federal Lanham Act’s prohibitions against deceptive use of names or images, and provisions of California statutory law prohibiting unfair competition in business by publishing the computer-altered image of Hoffman in its March 1997 issue.

The photograph appeared as part of an article entitled “Grand Illusions,” in which still photographs of famous film stars were merged with photographs of body doubles wearing spring 1997 fashions. In the 1982 film “Tootsie,” Hoffman played an out-of-work actor who dressed up as a woman to land an acting job. The photograph of Hoffman, which used a still shot of his head showing him dressed in character for “Tootsie,” was accompanied by text stating: “Dustin Hoffman isn’t a drag in a butter-colored silk gown by Richard Tyler and Ralph Lauren heels.”

On appeal, a panel of Ninth Circuit judges led by Robert Boochever held that the magazine spread was speech protected by the First Amendment, and not merely “commercial speech” which does little more than propose a commercial transaction.

“Viewed in context, the article as a whole is a combination of fashion photography, humor, and visual and verbal editorial comment on classic films and famous actors,” Boochever said in the opinion. “Any commercial aspects are ‘inextricably intertwined’ with expressive elements, and so they cannot be separated out ‘from the fully protected whole.'”

The district court ruled that even if the speech was protected, the magazine acted with “actual malice” by printing the piece knowing the computer-altered image of Hoffman was false and intended for readers to believe the falsehood. Actual malice, which is required for public figures to collect damages for noncommercial speech, means that a statement is made knowing it to be false or in reckless disregard for the truth.

The Ninth Circuit disagreed that the magazine intended to deceive readers. The court cited numerous notes and text in the L.A. Magazine piece explaining all of the images in the spread were digitally adjusted. The court noted that it must have been obvious that body doubles — not the famous actors — were used in the photo shoot because “the vast majority of the featured actors were deceased.”

(Hoffman v. Capital Cities/ABC and L.A. Magazine, Inc.; Media Counsel: Steven M. Perry, Munger, Tolles & Olson, Los Angeles) DB

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© 2001 The Reporters Committee for Freedom of the Press

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