Metropolitan News-Enterprise


Monday, July 9, 2001


Page 1


Ninth Circuit Rules:

First Amendment Protects Use of Computer-Altered Photo of Actor


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals Friday overturned a $3 million judgment Dustin Hoffman won against Los Angeles Magazine in 1999 over its use of an altered photo of the actor in his cross-dressing role as “Tootsie,” citing the First Amendment.

The panel ruled that the March 1997 magazine article featuring Hoffman and other actors was protected, noncommercial speech, came under the New York Times Co. v. Sullivan rule, and wasn’t published with malice.

The magazine used digital technology to alter the actors’ images so that they appeared in famous poses but wore stylish, modern clothes.

The well-known still from the movie “Tootsie”—for which Hoffman was named Best Actor by the motion picture academy—originally showed Hoffman dressed in a red sequined dress and high heels and posing in front of an American flag. In the altered photo, Hoffman’s head and the background are the same, but his body is replaced by a male model wearing a “butter-colored silk gown by Richard Tyler and Ralph Lauren heels.”

Other Actors

The magazine listed prices for the clothes and places where they could be bought in a “Shopper’s Guide” about 20 pages after the article. Other actors depicted in the “Grand Illusions” spread included Cary Grant in “North by Northwest,” Grace Kelly and Jimmy Stewart in “Rear Window,” Elvis Presley in “Jailhouse Rock,” and Susan Sarandon and Geena Davis as “Thelma and Louise.”

During a four-day trial in Los Angeles federal court two years ago, Hoffman testified that he was turned into an unpaid fashion model.

“If I were to be asked to be a model selling clothes, it would be worth millions of dollars,” Hoffman testified. U.S. District Judge Dickran Tevrizian of the Central District of California agreed, awarding the man he called “one of our country’s living treasures” $1.5 million in compensatory damages, an equal amount in punitive damages, and nearly $270,000 in attorney fees.

Tevrizian held that the article had an “exploitative commercial” purpose and was, therefore, not entitled to free speech protection.

But Senior Judge Robert Boochever, writing for the Ninth Circuit, distinguished a series of Ninth Circuit cases holding that the names, images, and voices of celebrities could not be used in advertisements without their consent.

“Grand Illusions” was an article, not an advertisement, the appellate jurist said. The clothing designers paid nothing for the inclusion of their works in the altered photographs, Boochever noted, even though some advertised other products in the magazine.

“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.

The court also rejected the 63-year-old actor’s argument that he was entitled to damages because the magazine maliciously intended to mislead readers into believing he posed for the photograph.

‘Digital Magic’

Noting that the New York Times rule requires that malice be proven by clear and convincing evidence, Boochever said the magazine made it reasonable clear that the photograph was a computer alteration. He pointed out that the magazine ran a spread of the original photographs as well as an explanation that “state-of-the-art digital magic” was used.

The judge elaborated:

“We do not believe that the totality of [the magazine’s] presentation of the article and the ‘Tootsie’ photograph provides 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 ‘Tootsie’ 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 stills. Although nowhere does the magazine state that models’ bodies were digitally substituted for the actors’ bodies, this would be abundantly clear given that the vast majority of the featured actors were deceased.”

While the magazine didn’t explicitly state that Hoffman and the others who were alive didn’t pose for the altered photographs, the judge continued, “there is certainly no clear and convincing evidence in the magazine itself that [it] intended to suggest the opposite—that it convinced Hoffman (or, for that matter, John Travolta, Elizabeth Taylor, Susan Sarandon, and Geena Davis) to recreate poses from their past roles for this fashion article.”

Judges A. Wallace Tashima and Richard C. Tallman joined Boochever in the opinion.

Hoffman’s attorney, Charles N. Shephard, Greenberg Glusker Fields Claman & Machtinger, wasn’t available for comment.

  Steven Perry of Munger, Tolles & Olson, who represented Los Angeles Magazine in the appeal, said his client was “gratified that the Ninth Circuit recognized the significant First Amendment concerns that were involved in the case.”

The case is Hoffman v. Capital Cities/ABC, Incorporated, 99-55563.


Copyright 2001, Metropolitan News Company