BY:Michael I. Rudell
(Originally published in the Entertainment Law column in the New York Law Journal, July 27, 2001.)
A decision by the Court of Appeals for the Ninth Circuit has overturned an award to Dustin Hoffman of compensatory and punitive damages resulting from the publication in a magazine of an altered photograph of him as he appeared in the motion picture “Tootsie.”1 The Court concluded that the magazine is entitled to First Amendment protection afforded noncommercial speech and that there was no showing that it had acted with actual malice.
The original photograph is a still from “Tootsie” showing Hoffman in character in a red long-sleeved sequined evening dress and high heels, posing in front of an American flag. In 1997, Los Angeles Magazine (“LAM”) owned by Capital Cities/ABC, Inc. (now ABC, Inc.) published its “Fabulous Hollywood Issue” in which an article entitled “Grand Illusions” used computer technology to alter famous film stills to make it appear that the actors were wearing Spring 1997 fashions. One altered photograph was the original described above in which the American flag and Hoffman’s head remained as they initially appeared, but his body and dress were replaced by the body of a male model in the same pose, wearing a spaghetti-strapped cream-colored silk evening dress and high heeled sandals. The caption which accompanied the original photograph was omitted. The text on the page identified the altered still as being from the movie “Tootsie” and read “Dustin Hoffman isn’t a drag in a butter-colored silk gown by Richard Tyler and Ralph Lauren heels.”
LAM did not seek permission from either Hoffman or Columbia Pictures, the copyright holder of the photograph. Hoffman’s complaint, filed initially in California state court but removed to Federal Court by ABC, alleged that LAM’s publication of the altered photograph was a misappropriation of his name and likeness in violation of California’s common law and statutory right of publicity and its unfair competition statute. After a bench trial, the district court awarded Hoffman $1.5 million dollars in compensatory damages and, after a subsequent hearing, $1.5 million dollars in punitive damages. It also held that ABC was not liable for any of the actions of LAM.
LAM contends that its challenged use of the photograph is protected by the First Amendment. It argues that the magazine article and altered photograph contained therein constitute an expression of editorial opinion entitled to protection under the First Amendment. Being a public figure, Hoffman therefore must show that LAM, a media defendant, acted with “actual malice,” i.e., with knowledge that the photograph was false, or with reckless disregard for its falsity. Because Hoffman did not produce clear and convincing evidence that LAM acted with actual malice, LAM contends that all of Hoffman’s claims are barred by the First Amendment.
In rejecting this argument, the district court concluded that the article was commercial speech not entitled to constitutional protection. It also found that LAM acted with actual malice, stating “the First Amendment does not protect knowingly false speech.”
In a footnote, the Court cites the Three Stooges decision previously discussed in this column.2 There the California Supreme Court held that there was no First Amendment defense to a California right of publicity claim when “artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain.” The footnote indicates that even if the Court were to consider LAM an “artist” and the altered “Tootsie” photograph “artistic expression” subject to the Three Stooges decision, there is no question LAM’s publication of the altered photograph contained “significant transformative elements.”
The Court then discusses whether the altered photograph was an exploitive commercial use not entitled to First Amendment protection. It notes that commercial speech has special meaning in the First Amendment context. Although there has yet to be a clear delineation of the boundary between commercial and non-commercial speech, the core notion of such speech is that it does no more than propose a commercial transaction. When speech is properly classified as commercial, a public figure plaintiff does not have to show that the speaker acted with actual malice.
In many right of publicity cases, the question of actual malice does not arise because the challenged use of the celebrity’s identity occurs in an advertisement that does no more than propose a commercial transaction and, thus, is clearly commercial speech. Such a use does not implicate the First Amendment’s protection of expressions of editorial opinion.
Hoffman points out that the body double in the altered photograph was identified as wearing Ralph Lauren shoes and that there was a Ralph Lauren advertisement elsewhere in the magazine. He also points to the Shoppers Guide in the back of the magazine which provided stores and prices for the shoes and gown.
The Court indicates that these facts are not enough to make the altered photograph pure commercial speech. LAM did not use Hoffman’s image in a traditional advertisement printed merely for the purpose of selling a particular product. LAM did not receive consideration from the designers for featuring their clothing in an article containing the altered movie stills, nor did the article simply advance a commercial message. It appears as a feature article on the cover of the magazine and in the table of contents. It is a compliment to and part of the issue’s focus on Hollywood’s past and present. Any commercial aspects are inextricably entwined with expressive elements, and they cannot be separated out from the fully protected whole.
Further, the decision states that the conclusion of the district court that the article was not protected speech because it was created to “attract attention” was erroneous. A printed article meant to draw attention to the for-profit magazine in which it appears does not fall outside the protection of the First Amendment just because it may help to sell copies.
After concluding that LAM’s publication of the altered photograph was not commercial speech, the Court turns to the issue of actual malice. The district court stated that even if LAM could raise a First Amendment defense, it acted with actual malice by publishing Hoffman’s altered image knowing it was false and intending that the readers believe the falsehood.
The Court reviews the district court’s finding of actual malice de novo. In doing so, it must satisfy itself that the plaintiff has proved malice by clear and convincing evidence, far in excess of the preponderance sufficient for most civil litigation. Plaintiff alleges, and the district court found, that the altered photograph was “false” because it (together with the accompanying text) created the impression that Hoffman himself posed for it (that is, that he was wearing the Richard Tyler dress and the Ralph Lauren shoes which replaced the red dress and the shoes Hoffman wore in the original photograph).
To show actual malice, plaintiff must demonstrate by clear and convincing evidence that LAM intended to create the false impression in the minds of its readers that they were seeing Hoffman’s body when they saw the altered photograph. If LAM unknowingly misled readers into thinking Hoffman had actually posed for the altered photograph, that would not be sufficient to demonstrate actual malice. Subjective or actual intent is required and the evidence clearly and convincingly must demonstrate that LAM knew (or purposefully avoided knowing) that the photograph would mislead its readers into thinking that the body in the altered photograph was Hoffman’s.
The Court states that it must go beyond the altered photograph itself and examine the totality of LAM’s presentation to determine whether it would inform the average reader that the altered photograph was not a photograph of Hoffman’s body. It refers to the magazine cover, table of contents describing the article, an editor’s note, the Contributor’s page, and the article itself in concluding that the totality of the presentation in the magazine provides no clear and convincing evidence that the editors intended to suggest falsely to the ordinary reader that he or she was seeing Hoffman’s body in the altered photograph. All but one of the references to the article in the magazine make it clear that digital techniques were used to substitute current fashions for the clothes worn in the original photograph. This is made even more apparent because the vast majority of the featured actors are deceased.
The Court concludes that LAM is entitled to the full First Amendment protection awarded non-commercial speech and that Hoffman did not show by clear and convincing evidence, which is far in excess of the preponderance sufficient for most civil litigation, that LAM acted with actual malice in publishing the altered photograph. Accordingly, it reverses the district court’s judgment in Hoffman’s favor and directs that judgment be entered for LAM.
1 Hoffman v. Capital Cities/ABC, Inc., U.S. Court Of Appeals, Ninth Circuit, Nos. 99-55563 and 99-55686, (July 6, 2001)
2 Comedy III Prods., Inc. v. Gary Saderup, Inc., 21 P.3d 797 (Cal. 2001); case discussed in NYLJ, Volume 225, No. 120, June 22, 2001.