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The Right of Publicity and Hoffman V. Capital Cities/ABC, Inc Loyola of Los Angeles Law Review Volume 37 Number 1 Ninth Circuit Review Article 5 9-1-2003 Reinterpreting Jurisprudence: The Right of Publicity and Hoffman v. Capital Cities/ABC, Inc. Casondra Kevorkian Follow this and additional works at: https://digitalcommons.lmu.edu/llr Part of the Law Commons Recommended Citation Casondra Kevorkian, Reinterpreting Jurisprudence: The Right of Publicity and Hoffman v. Capital Cities/ ABC, Inc., 37 Loy. L.A. L. Rev. 85 (2003). Available at: https://digitalcommons.lmu.edu/llr/vol37/iss1/5 This Notes and Comments is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. REINTERPRETING JURISPRUDENCE: THE RIGHT OF PUBLICITY AND HOFFMAN V. CAPITAL CITIES/ABC, INC.1 I. INTRODUCTION In Hoffman v. Capital Cities/ABC, Inc.,2 the Ninth Circuit Court of Appeals held that the First Amendment of the United States Constitution protected the use of actor Dustin Hoffman's image in an article featured in Los Angeles Magazine (LAM).3 In so holding, the court created questionable case precedent, which has led to inconsistent jurisprudence. In its March 1997 "Fabulous Hollywood Issue!," LAM featured the GrandIllusions article which "used computer technology to alter famous film stills to make it appear that the actors were wearing Spring 1997 fashions. '4 The films and actors featured in the article included, among others, John Travolta in Saturday Night Fever, Marilyn Monroe in The Seven Year Itch, Cary Grant in North by Northwest, and Dustin Hoffman in Tootsie.5 Dustin Hoffman, who "has scrupulously guided and guarded the manner in which he has been shown to the public," never consented to LAM's use of his image. 6 Nevertheless, LAM featured the altered Tootsie photograph, which appeared much like the original, except "Hoffman's body and his long-sleeved red sequined dress were replaced by the body of a male model in the same pose.., in a... gown by Richard Tyler and Ralph Lauren heels."'7 As a result, 1. 255 F.3d 1180 (9th Cir. 2001). 2. Id. 3. Id. at 1189. 4. Id. at 1183. 5. Id. 6. Hoffman v. Capital Cities/ABC, Inc., 33 F. Supp. 2d 867, 870-71 (C.D. Cal. 1999). 7. Hoffman, 255 F.3d at 1183. LOYOLA OF LOS ANGELES LAWREVIEW [Vol. 37:85 Hoffman sued LAM alleging a violation of his right of publicity in 8 his name, image, and likeness. This case Comment begins by providing a brief legal background of the relevant law regarding the right of publicity and the First Amendment. Next, this Comment summarizes and critically analyzes the Ninth's Circuit's decision in Hoffinan v. Capital Cities/ABC, Inc. Finally, this Comment concludes that the Ninth Circuit's conclusion was unsound, its reasoning unpersuasive, and, as a result, subsequent courts face the difficulty of distinguishing or reinterpreting the court's decision. II.BACKGROUND A. Right of Publicity as a PropertyRight "The right of publicity is the inherent right of every human being to control the commercial use of his or her identity."9 The right of publicity protects the commercial interests that private citizens and celebrities have in their identities. 10 A celebrity's identity can be valuable in promoting products and therefore, celebrities have an interest in preventing unauthorized commercial exploitation of their identities." Therefore, the right of publicity has "some social utility" in that it serves to protect those, primarily celebrities, who expended "considerable money, time and energy" in developing their own "skill, reputation, notoriety or virtues ...to permit an economic return through some medium of commercial 12 promotion."' 8. See id. Hoffman sued LAM for violations of his common law and California's statutory right of publicity, and also alleged a violation of the California unfair competition statute and the Federal Lanham Act. Id. 9. J. THOMAS MCCARTHY, McCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 28:01 (4th ed. 2003). 10. See White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1398 (9th Cir. 1992). 11. See id. 12. Comedy III Prods. v. Gary Saderup, Inc., 21 P.3d 797, 804-05 (Cal. 2001) (quoting Lugosi v. Universal Pictures, 25 Cal. 3d 813, 834-35 (1979) (Bird, C. J., dissenting)). Fall 2003] HOFFMAN V. CAPITAL CITIES/ABC, INC. The right of publicity emerged from the laws of unfair competition, misappropriation, fraud, and privacy. 13 However, that right was first independently recognized in 1953 by the Court of Appeals for the Second Circuit. 14 In Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.,15 the Second Circuit held that baseball players had the right to stop the unauthorized commercial use of their likenesses and playing statistics on baseball cards. 16 The court further expressed that individuals possess a property right in their identities, which allows them to grant exclusive use of their identities to one company in a specific market.17 Following the landmark decision in Haelan, many states began recognizing the right of publicity as a distinct intellectual property right. 18 Today, the right of publicity is widely recognized throughout the country on both common law and statutory grounds. 19 Under California state law, courts consider the right of publicity an intellectual property right, the infringement of which is considered a commercial tort of unfair competition. 20 California also provides a statutory remedy for the infringement of the right of publicity and provides that: Any person who knowingly uses another's name,... photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent... shall be liable for any damages21 sustained by the person... injured as a result thereof. The California statute is consistent with the underlying principle that an individual's personality right or right of publicity is a 13. See J. THOMAS MCCARTHY, THE RIGHTS OF PUBLICITY AND PRIVACY §§ 1:3-4 (2d ed. 2003). 14. See Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953). 15. Id. 16. Id. at 869. 17. Id. at 868-69. 18. See MCCARTHY, supra note 13, § 1:4. 19. Seeid. §§ 1:3-4. 20. See id. § 1:3. 21. CAL. CIV. CODE § 3344 (West 2003). 88 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 37:85 property right that deserves protection.22 In particular, celebrities by virtue of their time, effort, and labor invested a great deal to create their famous and commercially valuable identities. 23 Accordingly, the courts justifiably protect these rights because it prevents unjust infringement by those who participate in deceptive trade practices of identities and false advertising to2 4benefit from the marketability that they did not create. B. The Right of Publicity and the FirstAmendment The right of publicity allows individuals and celebrities to maintain exclusive control over their names and images. 25 Thus, they may exclude others from using their names and images without prior consent. 26 A tension therefore exists between the right of publicity and the First Amendment. The First Amendment protects freedom of speech. 7 The government's grant of the exclusive property right to individuals in their identities often restrains, and thus conflicts, with the public's arguable First Amendment right to use the individual's name or image as part of their own expressive messages.28 Defendants often argue that the right of publicity violates their constitutional right to free speech by "inhibit[ing] public debate and censor[ing] creative expressions., 2 9 Courts often resolve this conflict between the right of publicity and free speech by invoking the commercial speech doctrine. 30 22. See id. 23. See White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1399 (9th Cir. 1992) (holding that White's identity is so famous that it carries commercial value capable of marketing to advertisers); see also Winter v. DC Comics, 69 P.3d 473, 478 (Cal. 2003) ("[T]he right of publicity holder possesses... a right to prevent others from misappropriating the economic value generated by the celebrity's fame.. "). 24. Chia Heng Ho, Note, Hoffman v. Capital Cities/ABC, Inc., 17 BERKELEY TECH. L.J. 527, 530-31 (2002). 25. See White, 971 F.2d at 1399. 26. See id. at 1397 (Plaintiff alleged that defendant used her image in violation of her exclusive property right in her own identity). 27. U.S. CONST. amend. I. 28. See White, 971 F.2d at 1401 n.3. 29. Chia Heng Ho, supra note 24, at 532. 30. See Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 564-65 (1977). Fall 2003] HOFFMAN V. CAPITAL CITIES/ABC, INC. 89 Commercial speech is generally defined as speech that "does no more than propose a commercial transaction.",31 Commercial speech is entitled to lesser First Amendment protection than noncommercial speech.32 Nonetheless, commercial speech is entitled to some protection as it "is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired. 33 In order to restrain speech in the context of right of publicity cases, if the speech is classified as commercial, "a public figure plaintiff does not have to show that the speaker [or defendant] acted with actual malice. 34 Accordingly, commercial speech is not entitled to absolute First Amendment protection.3 ' The rationale justifying a lower threshold of protection for artistic expression that depicts or imitates a celebrity for commercial gain is based on the idea that such expression both "directly trespass[es] on the right of publicity without adding significant expression beyond that trespass, [and compromises] the state law interest in protecting the fruits of artistic labor [which] outweighs the expressive interests of the imitative artist.36 While courts grant commercial speech little First Amendment protection, in contrast, "work[s] [that] contain significant transformative elements..
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