Americans know that the First Amendment to our Constitution protects "free speech" including "freedom of the press." Americans also know that one person cannot use another's property without permission. Further, most would agree that the definition of property usually includes one's identity. So what happens when someone uses another person's actual image, for instance a photograph, even a digitally altered photograph, without permission?
A recent ruling by the Federal Court of Appeals for the 9th Circuit held that the First Amendment allowed a magazine to use an altered photograph of Dustin Hoffman, without permission or compensation, in a feature article and photo spread.
Most states have passed laws, or the courts have independently recognized, the doctrine of "Right of Publicity" which means that a third party cannot use another's photograph or image to sell or promote goods and services. Elvis Presley's estate, for instance, has zealously guarded its rights to images of the King. If an advertiser uses a photo, a drawing of Elvis Presley or even a photo or drawing of an Elvis-impersonator, it is likely that the advertiser has paid, or will soon be paying, a royalty to the estate.
Woody Allen stopped a men's clothing store from using a celebrity impersonator. Bette Midler and Tom Waits were able to enjoin (and collect damages from) advertisers using "sound-a-likes" in voice-overs. Vanna White even won in a dispute with Samsung Electronics when that company ran an advertisement featuring a pearl-wearing robot in a red dress turning letters on a game show.
Dustin Hoffman, however, ultimately failed in his efforts to college damages or even prevail on principle against Los Angeles magazine for use of an altered image of him in a dress and high heels, not unlike his famous character "Tootsie," from the movie of the same name. The March, 1997 issue of the magazine contained an article entitled "Grand Illusions," featuring modified images of living and dead actors and actresses wearing the latest styles by famous designers and listing prices and stores where the clothes could be purchased.
Hoffman succeeded at trial, winning a $3 million damages award, based upon his right of publicity under California law. Upon appeal, however, Capital Cities/ABC Inc., the former parent of Los Angeles magazine, prevailed. Although the Court of Appeals acknowledged that "commercial speech," especially including advertising, does not receive the same level of protection as other types of expression, the Court determined that a magazine feature article was not pure commercial speech.
Tootsie/Hoffman's image was not used to promote sales of the magazine or the shoes and clothing. The shoe and clothing designers did not pay to have their products featured in the magazine article. The Court of Appeals held that "the article as a whole is a combination of fashion photography, humor, and visual and verbal editorial comment on classic films and famous actors."
Finally, the Court held that a public figure like Dustin Hoffman cannot recover damages due to non-commercial speech by a media organization unless "actual malice" is proved. Here, no malice was shown, and in fact the magazine had included disclosures explaining that the photograph had been altered and that the body of the figure in the feature article was not Hoffman's. Although the magazine's use of a digitally altered image could be seen as negligent, it certainly was not malicious.
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