Publishing Pictures from a Movie Without Permission Lawsuit

In Hoffman v. Capital Cities/ABC, Inc. (C.D.Cal. 1999) 33 F. Supp.2d 867, actor Dustin Hoffman sued the publisher of Los Angeles Magazine for publishing his digitally altered still photograph copied without permission from the motion picture film Tootsie (Columbia Pictures 1982). The original photograph had depicted Hoffman, "in character, wearing a long red dress and standing in front of an American flag with the printed material, 'What do you get when you cross a hopelessly straight starving actor with a dynamite red sequined dress?' and 'You get America's hottest new actress.' " ( Id. at p. 870.) The photograph published in the magazine was digitally altered to combine "Mr. Hoffman's face and head and the American flag from the original still photograph, and a new photograph of a male model's body clothed in the [butter-colored] silk gown designed by Richard Tyler and high-heel shoes designed by Ralph Lauren." (Ibid.) The magazine article accompanying Hoffman's altered photograph promoted the fashion designs of Richard Tyler and Ralph Lauren. the magazine publisher failed to "obtain Mr. Hoffman's consent to commercially endorse or 'shill' for any fashion designer or advertiser or the magazine." (Hoffman v. Capital Cities/ABC, Inc., supra, 33 F. Supp.2d at p. 871.) In addition, the publisher did not seek or obtain the permission of the copyright holder, Columbia Pictures, to use Hoffman's photograph in the magazine. (Ibid.) In discussing the publisher's federal copyright preemption defense, the Hoffman court found that neither of the two required conditions had been met: "Defendant, Los Angeles Magazine, Inc.'s copyright preemption defense is unavailing. What Mr. Hoffman seeks to protect--his name, face and persona--are not 'writings' or 'works of authorship' that come within the subject matter of copyright. 17 U.S.C. 301. Moreover, the rights that Mr. Hoffman seeks to protect are not 'equivalent' to the rights protected by the Copyright Act. the claims asserted by Mr. Hoffman involve extra elements that are different in kind from those in a copyright infringement case. 17 U.S.C. 301." ( Hoffman v. Capital Cities/ABC, Inc., supra, 33 F. Supp.2d at p. 875.) With regard to the latter requirement, the district court agreed with Hoffman's claim that "his right to protect the use of his own name and image is separate from the copyrighted interest of Columbia in the motion picture Tootsie." ( Id. at p. 871, italics added.)