Appeals panel reverses $3 million award in actor's suit against magazine
By The Associated Press
07.09.01
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| Dustin Hoffman |
SAN FRANCISCO — A federal appeals court has reversed a $3 million award to Dustin Hoffman levied against Los Angeles Magazine, ruling that a computer-altered image of the actor was protected speech.
A three-judge panel of the 9th U.S. Circuit Court of Appeals said July 6 that the image, published in 1997, did not unlawfully use Hoffman's name and likeness. The panel said the photo was not an "exploitative commercial" use as the actor claimed and a federal judge ruled two years ago.
The altered image showed Hoffman in an evening gown and heels without his permission. The caption with the photo read: "Dustin Hoffman isn't a drag in a butter-colored silk gown by Richard Tyler and Ralph Lauren heels."
The appeals panel noted that it is unlawful to use a celebrity's identity "entirely and directly for the purpose of selling a product." But the court said the illustration, which listed the cost of the clothes and where they could be purchased, wasn't necessarily an advertisement.
The court said that the photo, which was displayed with other captions and altered images of different actors, was editorial speech protected under the First Amendment.
"Viewed in context, the article as a whole was a combination of fashion photography, humor and visual and verbal editorial comment on classic films and famous actors," Judge Robert Boochever wrote.
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.
The magazine, published by Emmis Communications Inc., had repeatedly argued that it was protected by the First Amendment, and that the computerized picture portrayed Hoffman's character in the 1982 cross-dressing comedy "Tootsie" rather than the actor himself.
The computer-generated photo layout in the March 1997 issue of Los Angeles Magazine was titled "Grand Illusions" and it featured classic movie stills with actors in the latest fashions.
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