The First Amendment protects a magazine that published a digitally alteredphotograph of actor Dustin Hoffman in drag. According to the U.S. Court ofAppeals for the Ninth Circuit, the article containing the digitally alteredphotograph did not constitute commercial speech, and the magazine did notpublish the photograph with actual malice. In 1997, Los Angeles Magazine (LAM) published an article called "GrandIllusions," which contained digitally altered photographs from famousmovies. The actors were depicted wearing the current season's newest fashions.Among the well-known pictures that LAM altered were images from Gone with theWind, The Wizard of Oz, Saturday Night Fever and Tootsie. The still photograph from Tootsie originally showed Dustin Hoffman incharacter - i.e., playing a male actor who dresses as a woman to land a role ona soap opera. The original image featured Hoffman wearing a red sequined dressand high heels and posing in front of the American flag. LAM digitally alteredthe photograph so that Hoffman's face remained, but his body and dress werereplaced by those of a male model in the same pose wearing new clothes. Thecaption to the photograph in LAM read: "Dustin Hoffman isn't a drag in abutter-colored silk gown by Richard Tyler and Ralph Lauren Heels." Hoffman sued LAM's parent company, Capital Cities/ABC Inc,. in Californiastate court, claiming that the digitally altered photograph was amisappropriation of his name and likeness in violation of California's commonlaw 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 casewas removed to federal district court, which found for Hoffman on all counts. On appeal, the Ninth Circuit reversed and directed the district court toenter judgment for the defendants. The court first found that LAM's article wasentitled to full First Amendment protections because it did not constitute purecommercial speech - it did more than merely propose a commercial transaction.The court acknowledged that the article was printed in order sell additionalcopies of the magazine, and that Ralph Lauren, whose shoes Hoffman appeared tobe wearing, was one of the magazine's advertisers. Nevertheless, the courtconcluded, when viewed...
Playing Dress-up with Tootsie Is OK, Ninth Circuit Rules
|Author:||Mr James McGuire|
|Profession:||Holland & Knight LLP|
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