DUSTIN HOFFMAN, Plaintiff-Appellee, v. CAPITAL CITIES/ABC, INCORPORATED, Defendant, and L.A. MAGAZINE, INC., Defendant-Appellant., 255 F.3d 1180

Summary

Defendant subsidiary argued that its use of the photo was protected under the First Amendment. The instant court reversed the district court's judgment. The photograph was not pure commercial speech. It was not used in a traditional advertisement printed merely for the purpose of selling a product. Viewed in context, the article, in which the photo appeared, as a whole was a combination of fashion photography, humor, and visual and verbal editorial comment on classic films and famous actors. Any commercial aspects were inextricably entwined with expressive elements, and so they could not be separated out from the fully protected whole. Further, plaintiff did not demonstrate by clear and convincing evidence that defendant subsidiary intended to create a false impression in the minds of its readers that when they say the photo they were seeing plaintiff's body. All but one of the references to the relevant article made it clear that digital techniques were used to substitute current ...