Hoffman v. Capital Cities/ABC, Inc.

Dustin Hoffman (plaintiff) was an actor who famously portrayed a male actor who dressed as a woman in the movie Tootsie. Tootsie was advertised with a photograph of Hoffman wearing a red dress, standing in front of an American flag. Fifteen years after Tootsie was released, Los Angeles Magazine (LAM) published a special issue featuring iconic photographic stills from famous Hollywood movies. The photographs had been altered to make the actors look as if they were wearing then-current fashions. The feature included the Tootsie photograph of Hoffman, altered to substitute a model’s body wearing a neutral-colored dress. The text noted, “Hoffman isn’t a drag” wearing a Richard Tyler dress and Ralph Lauren shoes. The magazine contained a Ralph Lauren advertisement and a guide that identified locations where readers could buy the clothing in the feature, but LAM did not receive payment for featuring the clothing. Hoffman sued LAM’s parent company, ABC, Inc. (defendant), formerly known as Capital Cities/ABC, Inc., in California state court, arguing that because Hoffman did not authorize the use of the photograph, LAM committed invasion of privacy by appropriation of name or likeness in violation of the California common law and statutory right of publicity, California unfair-competition law, and the Lanham Act. ABC removed the matter to the United States District Court for the Central District of California, and Hoffman added LAM to the matter. LAM conceded that one purpose of the feature was to improve sales but argued that it had a First Amendment right to publish the photograph. The trial court found for Hoffman on all claims, holding, among other things, that the photograph constituted commercial speech and therefore LAM could not assert a First Amendment defense.