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...