Playing Dress-up with Tootsie Is OK, Ninth Circuit Rules

Author:Mr James McGuire
Profession:Holland & Knight LLP

The First Amendment protects a magazine that published a digitally altered

photograph of actor Dustin Hoffman in drag. According to the U.S. Court of

Appeals for the Ninth Circuit, the article containing the digitally altered

photograph did not constitute commercial speech, and the magazine did not

publish the photograph with actual malice.

In 1997, Los Angeles Magazine (LAM) published an article called "Grand

Illusions," which contained digitally altered photographs from famous

movies. The actors were depicted wearing the current season's newest fashions.

Among the well-known pictures that LAM altered were images from Gone with the

Wind, The Wizard of Oz, Saturday Night Fever and Tootsie.

The still photograph from Tootsie originally showed Dustin Hoffman in

character - i.e., playing a male actor who dresses as a woman to land a role on

a soap opera. The original image featured Hoffman wearing a red sequined dress

and high heels and posing in front of the American flag. LAM digitally altered

the photograph so that Hoffman's face remained, but his body and dress were

replaced by those of a male model in the same pose wearing new clothes. The

caption to the photograph in LAM read: "Dustin Hoffman isn't a drag in a

butter-colored silk gown by Richard Tyler and Ralph Lauren Heels."

Hoffman sued LAM's parent company, Capital Cities/ABC Inc,. in California

state court, claiming that the digitally altered photograph was a

misappropriation of his name and likeness in violation of California's common

law and statutory right of publicity, that it amounted to unfair competition,

and that it violated the Lanham Act. After LAM was added as a party, the case

was removed to federal district court, which found for Hoffman on all counts.

On appeal, the Ninth Circuit reversed and directed the district court to

enter judgment for the defendants. The court first found that LAM's article was

entitled to full First Amendment protections because it did not constitute pure

commercial speech - it did more than merely propose a commercial transaction.

The court acknowledged that the article was printed in order sell additional

copies of the magazine, and that Ralph Lauren, whose shoes Hoffman appeared to

be wearing, was one of the magazine's advertisers. Nevertheless, the court

concluded, when viewed in context, "the article as a whole [was] a

combination of fashion photography, humor, and visual and editorial comment on

classic films and famous actors. Any...

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