The Right of Publicity versus the First Amendment
by Bruce P. Keller and Craig Bloom
Bruce P. Keller is a partner and Craig Bloom is an associate at Debevoise &
Plimpton in New York.
It looked like a clever idea for a magazine fashion spread: Dress models in modern
designer clothing, photograph them in the same positions as film stars appearing in famous
movie stills, and use "digital magic" to turn the film stars into fashion
models.
The March 1997 issue of Los Angeles Magazine included seventeen pages of these
photos, including Cary Grant from "North By Northwest," now dressed in Moschino;
Darth Vader from "The Empire Strikes Back," now wearing lush Versace under his
black cape; Marilyn Monroe from "The Seven Year Itch," standing above that windy
sidewalk grate in a buffeted Valentino dress; the fearsome beast from "The Creature
from the Black Lagoon," no longer barefoot, but in cushy Nike Air Jordans; the
Scarecrow from "The Wizard of Oz," now dancing down the yellow brick road in a
brick-patterned Moschino suit; and Dustin Hoffman from "Tootsie," now dressed in
a "butter-colored silk gown by Richard Tyler and Ralph Lauren heels."
A creative, colorful, and memorable feature—and a ticking time bomb. Los
Angeles Magazine had not sought anyone’s permission and one of the movie stars,
Dustin Hoffman, filed suit. In Hoffman v. Capital Cities/ABC, Inc., Hoffman alleged
that the magazine’s unauthorized use of his image violated his statutory and common
law rights of publicity under California law, and also violated the Lanham Act and a
similar state statute that prohibits unfair competition.1 After a four-day
bench trial in January 1999, the judge, the Hon. Dickran Tevrizian of the U.S. District
Court for the Central District of California, agreed. Judge Tevrizian plainly admired
Hoffman. His opinion begins by characterizing Hoffman as "truly one of our
country’s living treasures"2 and ends with a result that enriches
that treasure to the tune of $3,270,000: $1.5 million in compensatory damages, $1.5
million in punitive damages, and $270,000 in attorneys’ fees.3 Los
Angeles Magazine, a subsidiary of ABC, Inc., is appealing the decision.
Although most editorial uses of a person’s identity do not lead to liability, Hoffman
involves facts that have created a big exception: the use of a person’s identity in a
misleading manner. Courts have permitted right-of-publicity claims brought by celebrities
over false reports of their exploits and by noncelebrities featured in stock photographs
used to illustrate unrelated articles. The proper scope of this exception, however,
remains unsettled. In Hoffman, for example, although Judge Tevrizian’s
ultimate conclusion as to liability may be defensible, his opinion undervalues First
Amendment interests that limit the right of publicity. In New York, the law governing
fictionalization has become so muddled that the Second Circuit recently turned to the New
York Court of Appeals for resolution in the case Messenger v. Gruner + Jahr Printing
& Publishing.4
The Right of Publicity—Background
The right of publicity limits unauthorized uses of the name, likeness, and other
aspects of the identity of individuals. Right-of-publicity laws serve two distinct
purposes. First, they protect persons from the anguish and loss of dignity that may arise
from the unauthorized use of their identity. Second, they protect the property interest
that persons, especially celebrities, possess in their identities.
Most states protect the right of publicity through the common law, a statute, or both.
The California statute, for example, provides in relevant part that: "Any person who
knowingly uses another’s name, voice, signature, photograph, or likeness, in any
manner, . . . for purposes of advertising or selling, . . . without such person’s
prior consent . . . shall be liable for any damages sustained by the person or persons
injured as a result thereof." Punitive damages may also be awarded, and
attorneys’ fees are available to the prevailing party.5
A common law claim in California (and other jurisdictions that have adopted a similar
formulation) requires proof of: (1) the defendant’s use of the plaintiff’s
identity; (2) appropriation of the plaintiff’s identity to the defendant’s
advantage, commercial or otherwise; (3) lack of consent; and (4) resulting injury.6
Celebrities also have sued under the federal Lanham Act, which prohibits the use in
commerce of, for example, symbols or devices likely to deceive consumers as to the
sponsorship of goods or services by another person.7 This provision applies to
those right-of-publicity claims styled as false endorsement claims. Simply stated,
"false endorsement" means that the person portrayed did not consent to endorse
the product concerned. The Lanham Act prevents "the unauthorized use of a
celebrity’s identity . . . [through] the misuse of a trademark, i.e., a symbol or
device such as a visual likeness, vocal imitation, or other uniquely distinguishing
characteristic, which is likely to confuse consumers as to the plaintiff’s
sponsorship or approval of the product."8
Hoffman and the First Amendment/Public Interest Privilege
Although it is well accepted that people have broad rights to control the use of their
identities in advertising, journalism would be crippled if people similarly could prevent
the media from evoking their identities without their consent. The First Amendment, and
many right-of-publicity laws themselves, therefore require exemption for uses of identity
that concern "newsworthy events or matters of public interest."9 Los
Angeles Magazine raised that issue as a defense. Judge Tevrizian rejected it.
In fact, his opinion in favor of Hoffman has an indignant tone and betrays no sympathy
for Los Angeles Magazine’s position:
The unauthorized use of [Hoffman’s] name and likeness to promote
the interests of Los Angeles Magazine . . . crossed over the line between editorial
content and advertising. The photographs were manipulated and cannibalized to such an
extent that the celebrities were commercially exploited and were robbed of their dignity,
professionalism and talent. To be blunt, the celebrities were violated by technology.10
Although the court emphatically rejected all of Los Angeles Magazine’s
First Amendment and public interest defenses, the court should have credited at least some
of the magazine’s arguments.
The court relied heavily on the principle that the public interest exception does not
apply when a likeness is used in a false manner, and with actual malice.11 The
court cited the 1983 case Eastwood v. Superior Court (Eastwood I), in which
the California Court of Appeal held that the movie star Clint Eastwood could bring a
right-of-publicity claim against the National Enquirer for featuring Eastwood in an
allegedly false story about his love life.12 Eastwood prevailed in a similar
suit against the Enquirer fourteen years later in Eastwood v. National Enquirer,
Inc. (Eastwood II) after the tabloid printed a fabricated interview with the
star.13
The problem with applying Eastwood I and Eastwood II to the Hoffman case
is that the falsity of the Los Angeles Magazine article is highly debatable. The
magazine did not pretend that Dustin Hoffman actually wore the showcased clothing. To the
contrary, the article was entitled "Grand Illusions," the technique was
described as "digital magic," and the real photographs from the films followed
at the end of the article.14 Unlike the National Enquirer, Los
Angeles Magazine explicitly told its readers the truth: these were not
"real" photographs, but digital composites.
Another flaw with the opinion is its complete denial that "Grand Illusions"
served any public interest:
The Los Angeles Magazine article provided no commentary on fashion trends
and no coordinated or unified view of current fashions. The article contains no statement
that any particular style of clothes is in vogue, that any particular color is becoming
popular, or that any type of fabric is attracting the attention of designers. . . . [T]he
article is not really a presentation of fashion news or affairs.15
The article did, in fact, literally present itself as displaying the work of
"today’s hottest designers."16 Even aside from that description,
however, the article should be considered a work of public interest. Many members of the
public have a strong interest in viewing the latest fashions, and any magazine fashion
feature performs a public service by informing readers about the chosen designs. As the
New York Court of Appeals held in Stephano v. News Group Publications, Inc., the
newsworthiness exception applies to articles of consumer interest, including developments
in the fashion world.17 The Stephano court specifically held that
information about an item’s designer, price, and availability—details that Los
Angeles Magazine included in an accompanying shopping guide—"is of
legitimate reader interest," akin to similar information often provided in features
about books, movies, and other products.18
The Stephano court held that New York magazine did not violate the
plaintiff’s right of publicity by publishing a picture of Stephano, wearing a prized
bomber jacket, in the magazine’s "Best Bets" column.19
Similarly, Los Angeles Magazine should not have been found liable if it ran a
fashion feature that depicted what Hoffman actually wore in "Tootsie" or in real
life. Such a story would be newsworthy from a fashion angle, or as a celebrity lifestyle
report. Hoffman, however, never wore the Richard Tyler gown or the Ralph Lauren heels.
This permitted the Hoffman court to conclude that the use of Hoffman’s name
and likeness was "wholly unnecessary to deliver whatever message Defendant . . .
claims the Los Angeles Magazine article contained."20
There are situations, however, in which the digital cut-and-paste technique used by Los
Angeles Magazine would be more defensible. The magazine might have, for example,
presented the concocted images as part of a parody of the stars or the films.21
The magazine also could have published a legitimate feature on how today’s leading
costume designers, or perhaps the editorial staff of Los Angeles Magazine, would
change the famous characters’ looks if the films could be made today. There was, in
fact, helpful evidence on that point. The magazine’s style editor explained her
method as follows:
I thought about the clothes that I had seen at the fashion shows, I
thought about what would work best as far as if we were going to redo these movies, if
these movies were going to be remade today, what would work best in updating the
characters’ wardrobes, and at that point I started thinking about the different
designers and the different clothes as to what would flatter the characters the most.22
Unfortunately, that wasn’t how the story came out in print. The magazine presented
the feature as a fashion show featuring top Hollywood stars: "We know purists will be
upset," the editor-in-chief wrote in a prescient introduction, "but who could
resist the opportunity to produce a 1997 fashion show with mannequins who have such
classic looks?"23
Temptation might have been easier to resist had Los Angeles Magazine focused in
advance on a similar case involving one of the same movie stars it featured, Cary Grant.
In 1971 a federal court held in Grant v. Esquire, Inc. that Grant stated a claim
against Esquire magazine for altering a twenty-five-year-old photograph of Grant
and outfitting him in a modern acrylic sweater.24 The court stated that its
decision:
tells this publisher—or any other that may learn of it— just
two things: (a) It must refrain from making under-the-table arrangements with actual or
potential advertisers which would convert an apparent news story into a paid advertisement
. . .; and (b) If the publisher feels impelled to trade upon the name and reputation of a
celebrity, it must pay the going rate for such benefit.25
The Hoffman court also concluded that the public interest defense did not apply
because even if "Grand Illusions" were a bona fide report, "the right of
publicity permits the use of a person’s likeness only to the limited extent
reasonably required to convey the news to the public. . . . In this case, no part of Mr.
Hoffman’s likeness was reasonably required to convey what Defendant . . . claims was
the newsworthy aspect of its article."26
Although the court’s ultimate conclusion as to liability is understandable,
because, as discussed above, the text of "Grand Illusions" frustrated Los
Angeles Magazine’s attempts to proffer a better rationale for using
Hoffman’s image, the court’s damages award was extreme. As discussed above, much
of the article was a matter of public interest, and a modest recasting of the purpose of
the feature would have presented a strong case for full First Amendment protection.
Moreover, this was an editorial feature, not an advertisement (there was no evidence of
any complicity by the clothing companies). The award given to Hoffman by Judge Tevrizian
exceeds those given in notorious commercial advertising cases in recent years to the
mimicked singers Bette Midler and Tom Waits (by nearly $3 million and about $.75 million,
respectively), and to the game show hostess Vanna White, whose identity was evoked by a
wigged robot in a Samsung ad (White won about $400,000).27
Given the editorial nature of "Grand Illusions," the closeness of the case,
and the lack of any binding authority directly on point, at minimum the $1.5 million
punitive damages award should be reversed. In the Bette Midler case, for example, the
Ninth Circuit affirmed the district court’s denial of punitive damages because there
was no evidence that the advertising agency that imitated her voice meant to hurt her, and
because this was a novel situation and Midler’s rights were not clearly developed at
the time of the violation.28 In Hoffman, Los Angeles Magazine
similarly did not intend to harm Hoffman, and when Los Angeles Magazine created
"Grand Illusions," it was hardly well-settled that such an editorial feature
would violate an actor’s right of publicity.
New York Dilemma
In California, under Eastwood I and Eastwood II, the public interest
exception does not apply when a news account is knowingly false. In New York, however, the
question of whether falsity precludes any assertion of the public interest privilege
applicable to the state’s right of publicity law (N.Y. Civil Rights Law §§ 50, 51)
is so unsettled that a stumped Second Circuit asked the New York Court of Appeals for help
in the pending Messenger case.
Messenger involves a teenage model used to illustrate a letter to an advice
column entitled "Love Crisis" and published in the magazine YM, Young and
Modern. The contents of the letter, which the model did not write, were summed up by
the headline "I got trashed and had sex with three guys."29
As explained in Finger v. Omni Publications, International Ltd., New York has
two exceptions to the privilege that normally protects the use of pictures to illustrate
articles of public interest. The privilege does not apply if: (1) the picture "has no
real relationship to the article"; or (2) "the article is an advertisement in
disguise."30
Messenger would be easy to resolve if the New York courts took a broad view of
the "no real relationship" exception. Arguably, the posed pictures of the
plaintiff have nothing to do with the troubled author of the letter. The courts, however,
have found that seemingly unrelated photographs in fact have a "real
relationship" to the articles to which they are attached. In Finger, for
example, a stock photograph of a large family appeared with the caption, "Want a big
family? Maybe your sperm needs a cup of Java in the morning. Tests reveal that
caffeine-spritzed sperm swim faster, which may increase the chances for in vitro
fertilization."31 Noting that the "‘newsworthiness
exception’ should be liberally applied," Finger held that the picture of
a big family was reasonably related to the article’s theme of fertility.32
In Messenger, the district court held, and the plaintiff conceded before the Second
Circuit, that the use of her photographs was reasonably related to a matter of public
interest.33
The confusion arose in Messenger because some New York cases have recognized a
third exception to the newsworthiness privilege, "where the use at issue is
‘infected with material and substantial falsification.’"34 The Finger
court, however, ignored these cases and this exception, even though the issue had been
briefed by the parties.35 The Finger court also described the "no
real relationship" and "advertising in disguise" exceptions as the only
exceptions to the newsworthiness privilege.36 The Second Circuit could not
determine, however, whether the Finger court meant to overrule the falsification
cases or whether the court merely distinguished them implicitly on their facts.37
One major obstacle to the New York Court of Appeals’s adoption of a falsification
exception to the newsworthiness privilege is that such a position would essentially
recognize a cause of action for false light invasion of privacy. The elements of this tort
are: (1) public disclosure; (2) falsity; (3) identification of the plaintiff; (4)
offensiveness; and (5) fault.38 In fact, a right-of-publicity claim based on
falsification might be even broader than a false light claim, because a plaintiff would
not have to prove offensiveness.
Unlike many other states, however, New York does not have a common law right of
privacy. The adoption of privacy law has been left to the legislature, which has enacted
only a right-of-publicity statute, and has rejected proposals to expand privacy protection
to the three other privacy torts (publication of private facts, intrusion upon seclusion,
and false light).39 Moreover, even if the New York Court of Appeals were free
to recognize the false light tort, it should follow the lead of several state courts that
have rejected the tort in recent years, citing the substantial overlap between that tort
and defamation and the chilling effect on free speech.40
Until the uncertainty is resolved, the lesson for the media is clear: if possible,
avoid using stock photos of recognizable people. If such photos are used, be sure that the
captions dispel any doubt as to possible connections between the subjects of the
photographs and the allegations of the accompanying story.
Endnotes
1. 33 F. Supp. 2d 867 (C.D. Cal. 1999).
2. Id. at 869.
3. Id. at 872-73; Dustin Hoffman gets $1.5 million more in lawsuit, Reuters,
Jan. 28, 1999; Magazine to Pay Hoffman Legal Fees, Associated Press, Mar. 9, 1999.
4. Nos. 98-7767(L), 98-7865(XAP), 1999 U.S. App. LEXIS 8190 (2d Cir. Apr. 28, 1999).
5. Cal. Civil Code § 3344.
6. E.g., Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417, 198 Cal. Rptr. 342
(Cal. Ct. App. 1983).
7. 15 U.S.C. § 1125(a).
8. Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1106-10 (9th Cir. 1992) (Frito-Lay hired a
singer whose voice closely resembled the singer Tom Waits’ gravelly tones to sing its
jingle in Waits’ style; Waits won $2.5 million in compensatory damages, punitive
damages, and attorneys’ fees).
9. Howell v. New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350 (1993) (citation omitted)
(newspaper did not violate a hospitalized psychiatric patient’s right of publicity by
publishing a photograph of the patient walking with a famous patient at the facility). See
also Eastwood, 149 Cal. App. at 421-23, 198 Cal. Rptr. at 349-50 (1983)
(discussing California’s statutory exception for news and public affairs, and the
constitutional protection for publication of matters in the public interest).
10. 33 F. Supp. 2d at 873.
11. Id. at 875.
12. 149 Cal. App. 3d 409, 425, 198 Cal. Rptr. 342, 352 (1983).
13. 123 F.3d 1249 (9th Cir. 1997).
14. Grand Illusions, Los Angeles Magazine, Mar. 1997, at 104, 119.
15. 33 F. Supp.2d at 874-75.
16. Grand Illusions, supra note 14, at 104.
17. 64 N.Y.2d 174, 485 N.Y.S.2d 220 (1984).
18. Id.
19. Id.
20. 33 F. Supp. 2d at 874-75.
21. In one leading case, Cardtoons, L.C. v. Major League Baseball Players Association,
the Tenth Circuit held that parody baseball trading cards featuring, for example,
"Treasury Bonds" (a.k.a. Barry) and "Egotisticky Henderson" (a.k.a.
Ricky), were not actionable because the card producer’s First Amendment right to free
expression outweighed the players’ publicity rights. 95 F.3d 959 (10th Cir. 1996).
22. Hoffman, Defendants’ Trial Brief Pursuant to Local Rule 10, dated Jan. 5,
1999, at 2.
23. Grand Illusions, supra note 14, at 10.
24. 367 F. Supp. 876 (S.D.N.Y. 1973).
25. Id. at 883.
26. 33 F. Supp. 2d at 875 (citing Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S.
562 (1977) (although news program could report on human cannonball’s performance, it
could not broadcast his entire fifteen-second performance without violating his right of
publicity)).
27. Midler v. Young & Rubicam, Inc., 1991 U.S. App. LEXIS 22641 (9th Cir. 1991); Waits,
978 F.2d at 1093; Wall St. J., Jan. 24, 1994, at B2.
28. Midler, 1991 U.S. App. LEXIS 22641. In the subsequent Waits case, the
Ninth Circuit held that Midler had clearly established the right of a well-known
singer to control the commercial use of a distinctive voice, and affirmed a punitive
damages award to Waits. 978 F.2d at 1104-05.
29. 1999 U.S. App. LEXIS 8190, at *2-*4.
30. 77 N.Y.2d 138, 141-42, 564 N.Y.S.2d 1014 (1990).
31. 77 N.Y.2d at 140.
32. 7 N.Y.2d at 142-43, 564 N.Y.S.2d at 1017.
33. 994 F. Supp. 525, 528 (S.D.N.Y. 1998); 1999 U.S. App. LEXIS 8190, at *9.
34. 1999 U.S. App. LEXIS 8190, at *8-*9 (citing Spahn v. Julian Messner, Inc., 21 N.Y.2d
124, 127, 286 N.Y.S. 832, 834 (1967) (baseball star could recover for use of name in
biography to extent that defendant culpably falsified aspects of his life); see also
Fils-Aime v. Enlightenment Press, Inc., 133 Misc. 2d 559, 561, 507 N.Y.S.2d 947, 948 (App.
Term 1986) (denying summary judgment for publication of photograph, taken for other
purposes, accompanying article on child pornography)).
35. 1999 U.S. App. LEXIS 8190, at *11.
36. 77 N.Y.2d at 143, 564 N.Y.S.2d at 1017.
37. 1999 U.S. App. LEXIS 8190, at *12-*13.
38. Restatement of Torts (Second) § 652E.
39. Howell, 81 N.Y.2d at 123-24.
40. E.g., Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. Sup. Ct. 1998).
