"Tootsie" ad leads to $3 million verdict for Hoffman

CALIFORNIA–A federal district judge in Los Angeles ordered Los Angeles magazine to pay actor Dustin Hoffman $1.5 million in compensatory damages and $1.5 million in punitive damages in late January after it published without permission a photograph of Hoffman appearing in drag as he did in the film “Tootsie,” but wearing a dress and heels added to the photograph through computer imaging.

Judge Dickran Tevrizian concluded that the magazine violated Hoffman’s common law right of publicity, his statutory right of publicity under California law, the federal Lanham Act’s prohibitions against deceptive use of names or images, and provisions of California statutory law prohibiting unfair competition in business by publishing the computer-altered image of Hoffman in its March 1997 issue.

The photograph appeared as part of an article entitled “Grand Illusions,” in which still photographs of famous film stars were merged with photographs of body models wearing spring 1997 fashions.

In the 1982 film “Tootsie,” Hoffman played an out-of-work actor who dressed up as a woman to land an acting job. The photograph of Hoffman, which used a still shot of his head showing him dressed in character for “Tootsie,” was accompanied by text stating: “Dustin Hoffman isn’t a drag in a butter-colored silk gown by Richard Tyler and Ralph Lauren Heels.”

In his opinion, Tevrizian called Hoffman “one of our country’s living treasures” and characterized his name and likeness as “an extremely valuable commodity,” made all the more valuable “because he does not knowingly permit commercial uses of his identity” out of fear that such commercial uses would suggest “that his career is in decline.”

Tevrizian rejected the magazine’s assertion of First Amendment protections for its article and its use of Hoffman’s image. He found the article was not news or commentary, but was merely an advertisement for the fashions shown and for the magazine.

“The First Amendment provides extremely broad protection but does not permit unbridled exploitive speech at the expense of Mr. Hoffman and his distinguished career,” Tevrizian wrote.

Tevrizian noted that Los Angeles magazine violated its agreements with the photo archive companies that provided the photos for “Grand Illusions” by altering the images and by surrendering possession of those photos to a computer-imaging company.

He concluded that the magazine’s use of Hoffman’s photograph violated his right of publicity under common law and statutory law because the use was unauthorized and was for commercial gain.

He also concluded the magazine violated the Lanham Act because its use of the photograph was likely to deceive and confuse consumers by leading them to believe that Hoffman had endorsed the use of the photograph. Tevrizian also found the magazine had engaged in unfair competition under the California Business and Professions Code by using Hoffman’s photographs in “a manner constituting unfair, deceptive, untrue or misleading advertising.”

Tevrizian awarded compensatory damages of $1.5 million based on the open market value of Hoffman’s image, determining that Hoffman had suffered harm from the publication in that “he was unable to reap the commercial value or control the use to which his name and likeness were put.” He concluded that Hoffman was entitled to punitive damages because he found the magazine’s use of the photograph was “wilful and was done in conscious disregard of Mr. Hoffman’s rights.” He also awarded Hoffman attorney’s fees.

A spokeswoman for ABC, which owns the magazine, issued a statement after the ruling saying that it plans to appeal the award, according to reports in The New York Times. (Hoffman v. Capital Cities/ABC, Inc.; Media Counsel: Steven Perry, Los Angeles)