## Facts

- Dustin Hoffman appeared in a well-known film still from *Tootsie* (1982) showing him in character in a sequined dress and heels.
- *Los Angeles Magazine* published a 1997 “Fabulous Hollywood Issue!” containing “Grand Illusions,” an editorial feature that digitally altered famous movie stills to depict actors wearing Spring 1997 fashions.
- The feature included an altered *Tootsie* image in which Hoffman’s head remained but his body and dress were replaced with a male model’s body wearing a designer evening gown and heels; accompanying text named fashion designers and identified the still as from *Tootsie*.
- The magazine did not obtain Hoffman’s consent and did not obtain permission from the film still’s copyright holder.
- Hoffman sued, asserting California common-law and statutory right of publicity (Cal. Civ. Code § 3344), unfair competition (Cal. Bus. & Prof. Code § 17200), and Lanham Act § 43(a) (15 U.S.C. § 1125(a)) claims; the case proceeded in federal court after removal.
- The district court ruled largely for Hoffman and awarded damages; the publisher appealed.

## Issues

1. Whether the magazine’s use of Hoffman’s name and digitally altered likeness in an editorial feature was commercial speech (advertising/endorsement) or protected expressive speech.
2. Whether the use created liability under California’s common-law and statutory rights of publicity.
3. Whether the use supported liability under Lanham Act § 43(a) for false endorsement or false advertising.
4. Whether California’s unfair competition claim could proceed where the underlying theories were barred or failed.
5. Whether the First Amendment barred the asserted state-law and federal claims in this context.

## Decision

- The Ninth Circuit reversed the judgment for Hoffman and directed entry of judgment for the magazine defendants.
- The court held the “Grand Illusions” spread was protected editorial expression, not a commercial advertisement or endorsement.
- The court rejected Hoffman’s right-of-publicity claims under both California common law and Cal. Civ. Code § 3344 on First Amendment grounds.
- The court rejected the Lanham Act § 43(a) claim because the use was not “commercial advertising or promotion” and did not support actionable endorsement confusion in this editorial context.
- The court rejected the unfair competition claim as derivative of the failed publicity and Lanham Act theories and as barred by the First Amendment when used to penalize protected expression.

## Legal Principles

- Editorial and artistic uses of a celebrity’s identity in a magazine feature are generally treated as fully protected speech, even if the publication is sold for profit.
- California publicity rights target unauthorized commercial exploitation (such as advertising or endorsements) and must yield when applied to protected expressive uses.
- References to products or designers embedded in an expressive editorial work do not, by themselves, convert the work into commercial speech.
- Lanham Act § 43(a) liability for false endorsement/false advertising is limited where the challenged use occurs in editorial content rather than “commercial advertising or promotion.”
- Unfair competition law cannot be used to impose liability where the underlying conduct is protected expression or where the predicate publicity and Lanham theories fail.

## Conclusion

The Ninth Circuit held that a magazine’s digitally altered use of Dustin Hoffman’s likeness in an editorial fashion-and-film feature was protected by the First Amendment and did not support liability under California publicity or unfair competition law or under the Lanham Act’s false endorsement/false advertising provisions.


Hoffman v. Cap. Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001)