Use of Altered Celebrity Photo OK, Court Says

A federal appeals court in San Francisco on Friday overturned a judge’s $3-million verdict that Los Angeles magazine violated actor Dustin Hoffman’s rights by publishing, without his consent, a computer-altered photo of him in a woman’s evening gown and high heels.

In ruling 3-0 for the magazine, the U.S. 9th Circuit Court of Appeals made two key findings.

Judge Robert Boochever’s opinion said that because the photo appeared in an article rather than in an advertisement the use of Hoffman’s image did not constitute “commercial speech.” Consequently, Boochever said, the article was entitled to the full protection of the 1st Amendment.

In addition, the appeals court ruled that Hoffman had not proved that the magazine acted with “actual malice” when it altered the photograph. Boochever, joined by Judges A. Wallace Tashima and Richard C. Tallman, said Hoffman had to prove “actual malice” under prior court decisions because he is a public figure.

The case was being closely followed in legal circles to see what sort of standard the court would set in situations like this. Hoffman’s lawyer said he will ask the appeals court to rehear the case with a larger panel of judges.

“This is a quietly sensational decision in an important case, especially coming from the 9th Circuit, which has been called the circuit of the stars because of its alleged friendliness to celebrities in right of publicity cases,” said UC Berkeley law professor Stephen R. Barnett.

Hoffman’s attorney, Charles N. Shepard, expressed dismay at the outcome.

“The decision really creates a profound change in the law regarding the right of publicity,” Shepard said. “The court is saying the right of publicity only applies in formal advertisements. . . . That is a sea change in where the law has been.”

But Floyd Abrams, a leading media lawyer, hailed the decision as an important 1st Amendment victory.

“If this case had been lost, it would have been extremely difficult to portray celebrities without their permission--and hence without paying them--in a potentially wide range of circumstances,” said Abrams, who filed a friend-of-the court brief on behalf of several news organizations, including the Los Angeles Times, the New York Times, Newsweek magazine and CBS.

“If the portrayals in this article had been ruled ‘commercial speech,’ then a good deal of potential speech could have been lost, especially of a satirical nature because people don’t like to be satirized,” Abrams said.

Hoffman, a two-time Academy Award winner, sued the magazine over a March 1997 spread that used a computer to dress famous movie stars, some dead--including Cary Grant, Grace Kelly, Marilyn Monroe and Elvis Presley--in the latest spring fashions.

A head shot of Hoffman taken from his appearance in drag in the movie “Tootsie” was attached to a picture of a male model wearing a silk evening gown and high heels. The caption next to the composite read: “Dustin Hoffman isn’t a drag in a butter-colored silk gown by Richard Tyler and Ralph Lauren heels.”

A buyer’s guide in the back of the magazine listed prices and stores where the items could be bought.

Hoffman maintained that he was entitled to protect his name from commercial exploitation.

U.S. District Judge Dickran Tevrizian Jr. had agreed in his decision two years ago.

“The 1st Amendment provides extremely broad protection, but it does not permit unbridled exploitative speech at the expense of Mr. Hoffman and his distinguished career,” Tevrizian wrote in a January 1999 decision.

Tevrizian said the photographs of the stars “were manipulated and cannibalized to such an extent that the celebrities were commercially exploited and were robbed of their dignity, professionalism and talent.”

On Friday, the 9th Circuit disagreed both on the applicable legal standard and on the magazine’s intentions.

The appellate judges distinguished this case from several other 9th Circuit rulings in which the decisions were in favor of celebrities, including Kareem Abdul-Jabbar and Vanna White. In those cases the court ruled that the celebrities’ identities had been improperly utilized in commercials for cars and electronics products.

The appeals court said the presence of the “Shopper’s Guide” in the back of the magazine linked to the photo with the Richard Tyler and Ralph Lauren product identifications was “not enough to make the ‘Tootsie’ photograph pure commercial speech.”

The judges said that the totality of the article and the “Tootsie” photo presentation did not provide clear and convincing evidence that the magazine’s editors intended to falsely suggest to ordinary readers that they were seeing Hoffman’s body in the altered “Tootsie” photograph.

The court noted that at several points the article titled “Grand Illusions” made it clear that the magazine was presenting a fantasy that would hardly deceive a reasonable reader.

“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 wrote. “Any commercial aspects are ‘inextricably entwined’ with expressive elements, and so they cannot be separated out ‘from the fully protected whole.’ ”

Steven N. Perry, the lawyer who represented Los Angeles magazine, argued in his appellate brief that “the ‘exploitative speech’ standard that Hoffman proposes is both unsupported by the factual record and is constitutionally unsound.”

Perry said Friday he was “pleased that the court recognized the important 1st Amendment issues involved.”

Los Angeles attorney Mark S. Lee, who represents the estate of Elvis Presley in a lawsuit arising from the same issue of the magazine, said he was troubled by the decision.

“I’m afraid that this ruling could permit the media to digitally alter photographs of anyone to make it appear that they did something they didn’t do,” Lee said.

J. Thomas McCarthy, a law professor at the University of San Francisco who specializes in intellectual property law, said he thought the earlier decision by Tevrizian was the correct one.

“This was using Hoffman to attract attention to what was essentially an advertisement for clothes by Richard Tyler and Ralph Lauren,” McCarthy said.

“I don’t think it changes the law, but it certainly opens up an opportunity that did not exist before for people who make clothing to use famous people as their models [without their permission] if they do it the way Los Angeles magazine did,” McCarthy said.

Barnett of UC Berkeley disagreed.

“It is a great victory for the media and the 1st Amendment against efforts by celebrities to control how they are depicted or referred to in the media. . . . The court drew a clear line against the extension of right of publicity claims beyond what is truly advertising to anything that is vaguely commercial.”