Hoffman v. Capital Cities/Abc, Inc.

Decision Date22 January 1999
Docket NumberNo. CV 97-3638 DT (Mcx).,CV 97-3638 DT (Mcx).
Citation33 F.Supp.2d 867
PartiesDustin HOFFMAN, Plaintiff, v. CAPITAL CITIES/ABC, INC., Fairchild Publications, Inc., and Los Angeles Magazine, Inc., Defendants.
CourtU.S. District Court — Central District of California

Bertram Fields, Charles N. Shephard, Aaron J. Moss, Greenberg Glusker Fields Claman & Machtinger, LLP, Los Angeles, CA, for plaintiff.

Steven M. Perry, Steven B. Weisburd, Munger, Tolles & Olson, LLP, Los Angeles, CA, for defendants.

COURT'S MEMORANDUM OF DECISION, FINDINGS OF FACT AND CONCLUSIONS OF LAW

TEVRIZIAN, District Judge.

I
MEMORANDUM OF DECISION

The above action came on regularly for trial on January 12, 13, 14 and 15, 1999.

Greenberg Glusker Fields Claman & Machtinger, LLP by Charles N. Sheppard, Esq. and Aaron J. Moss, Esq., appeared for Plaintiff, Dustin Hoffman.

Munger, Tolles & Olson, LLP by Steven M. Perry, Esq. and Steven B. Weisburd, Esq., appeared for Defendants, Los Angeles Magazine, Inc. and ABC, Inc. (formerly known as Capital Cities/ABC, Inc.).

Evidence was presented to the Court sitting without a jury. Oral argument made on behalf of the respective parties was presented and considered by the Court. The Court, now feeling fully advised, rules as follows:

1. Defendant ABC, Inc.'s Motion for Judgment pursuant to Federal Rule of Civil Procedure 52(c) is granted. The Court finds that insufficient evidence was presented to the Court on the theories of ratification and/or alter ego to hold Defendant, ABC, Inc., liable;

2. Plaintiff is entitled to judgment as against Defendant, Los Angeles Magazine, Inc., in the total sum of $1,500,000 for compensatory damages on all causes of action asserted by Plaintiff as against Defendant, Los Angeles Magazine, Inc.;

3. Plaintiff is entitled to an award of punitive damages as against Defendant, Los Angeles Magazine, Inc., in a sum to be ascertained after further evidence is presented to the Court. Evidence on this issue will be presented to the Court on January 28, 1999, at 9:30 a.m. in this Courtroom. The Court finds, pursuant to clear and convincing evidence, that the conduct of Defendant, Los Angeles Magazine, Inc., was wilful, malicious and in conscious disregard of Plaintiff's rights pursuant to California Civil Code Section 3294 in that said Defendant has been guilty of oppression, fraud and malice as defined in the said civil code section;

4. Plaintiff is entitled to an award of attorney's fees in an amount to be fixed by the Court pursuant to California Code of Civil Procedure, Section 3344(a) and Section 35 of the Lanham Act, 15 U.S.C. § 1117(a); and,

5. Plaintiff is entitled to costs of suit as against Defendant, Los Angeles Magazine, Inc.

II FINDINGS OF FACT

Plaintiff, Dustin Hoffman, is a highly successful and recognizable motion picture actor. For the past thirty years he has appeared in scores of motion pictures and has received numerous honors, including six Academy Award nominations and two Academy Awards. He has also been nominated and has been awarded a Golden Globe Award and an Emmy Award for his work. It can be said that Mr. Hoffman is truly one our country's living treasures, joining the ranks of an exclusive handful of motion picture talent.

The right to use Plaintiff's name and likeness is an extremely valuable commodity and privilege not only because of Mr. Hoffman's stature as an actor, but because he does not knowingly permit commercial uses of his identity.1 Since appearing in the film The Graduate, Mr. Hoffman has scrupulously guided and guarded the manner in which he has been shown to the public. Plaintiff maintains a strict policy of not endorsing commercial products for fear that he will be perceived in a negative light by his peers and motion picture industry executives, suggesting that his career is in decline and that he no longer has the business opportunities or the box office draw as before.

Defendant, ABC, Inc. (formerly known as Capital Cities/ABC, Inc.), is owned by the Walt Disney Company. ABC, Inc. owns 100% of Defendant, Los Angeles Magazine, Inc., the publisher of Los Angeles Magazine. While many officers and corporate directors of ABC, Inc. serve on the Board of Directors of Los Angeles Magazine, Inc., insufficient evidence was presented to the Court to hold Defendant, ABC, Inc., liable on the theories of ratification and/or alter ego. In fact, the operative pleadings are silent as to these theories.

At Page 118 of its March 1997 issue, Los Angeles Magazine published a photograph of Mr. Hoffman as he appeared to have appeared in the successful 1982 motion picture Tootsie, and through a process of technology employing computer imaging software, manipulated and altered the photograph to make it appear that Mr. Hoffman was wearing what appeared to be a contemporary silk gown designed by Richard Tyler and high-heel shoes designed by Ralph Lauren. Page 118 also contained the following text: "Dustin Hoffman isn't a drag in a butter-colored silk gown by Richard Tyler and Ralph Lauren heels."

Mr. Hoffman's photograph and name appeared in conjunction with an article entitled, "Grand Illusions," published on Pages 104 through 119 of the March 1997 issue of Los Angeles Magazine. The magazine article used computer technology to merge famous still photographs of famous actors/actresses, many of whom are now deceased, from classic films with photographs of body models wearing spring 1997 fashions identifying the designers of the articles of clothing used in the cannibalized photographs. Many of the articles of clothing used in the magazine article were designed by designers who were major advertisers in Los Angeles Magazine at the time of publication. The "Grand Illusions" article references a "shopping guide" that provides price and store information for the clothing used in the magazine article on Page 147.

The photograph that is the subject of the present litigation used in the "Grand Illusions" article was, as stated before, a still from the film Tootsie, which starred Dustin Hoffman. The original still photograph depicted Mr. Hoffman entirely, 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." The new composite computer-generated photograph that appeared in the "Grand Illusions" article incorporated only 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 silk gown designed by Richard Tyler and high-heel shoes designed by Ralph Lauren.

On Page 7 of the magazine, a still photograph of Humphrey Bogart and Ingrid Bergman appeared with the caption: "ON THIS PAGE. Fashion photographed by Alberto Tolot. Digital composite by ZZYZX. See `Shopping Guide' on Page 147 for details." Also contained on the same page was the following: "104 GRAND ILLUSIONS. By using state-of-the-art digital magic, we clothed some of cinema's most enduring icons in fashions by the hottest designers."

At Page 10 of the magazine, the Editor-in-Chief of the Los Angeles Magazine wrote: "... The movie stills in our refashioned spectacular, `Grand Illusions' (Page 104), have appeared before—in fact, they're some of the most famous images in Hollywood history. But you've never seen them quite like this. Cary Grant, for example, is still ducking that pesky plane in North by Northwest, but now he is doing it as a runway model, wearing a suit from Moschino's spring collection."

"We know purists will be upset, but who could resist the opportunity to produce a 1997 fashion show with mannequins who have such classic looks?"

Defendant, Los Angeles Magazine, Inc., did not seek or obtain permission from Mr. Hoffman to use his name or likeness in the March 1997 issue of Los Angeles Magazine and, in particular, did not obtain Mr. Hoffman's consent to commercially endorse or "shill" for any fashion designer or advertiser or the magazine. Defendant, Los Angeles Magazine, Inc., did not seek or obtain the permission of Columbia Pictures to use any image from Tootsie in the March 1997 issue of Los Angeles Magazine.

Defendants, Los Angeles Magazine, Inc. and ABC, Inc., have contended throughout this litigation that Plaintiff's state claims are preempted by the Federal Copyright Act and that the holder of the copyright is the proper party. This Court finds Defendants' argument regarding preemption to be unavailing.

This Court finds that Section 301 of the Copyright Act imposes a two-part test for preemption. First, the work at issue "must come within the `subject matter of copyright' as defined in sections 1022 and 1033 of the Copyright Act." See Del Madera Properties v. Rhodes & Gardner, Inc., 820 F.2d 973, 976 (9th Cir.1987). Second, "the rights granted under state law must be `equivalent to any of the exclusive rights within the general scope of copyright as specified by Section 1064 [of the Copyright Act]'." Id. The second prong of Del Madera requires that "to survive preemption, the state cause of action must protect rights which are qualitatively different from the copyright rights ... The state claim must have an `extra element' which changes the nature of the action." Id. at 977 (citations omitted). With respect to each of the state law claims in the present case, it is evident that the preemption doctrine does not apply.

Plaintiff's right of publicity claims proceed under the theory that Defendants' computerized manipulation of the Tootsie image and Defendants' publication of that manipulated image amount to an unauthorized use of Plaintiff's name and likeness. Plaintiff argues 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. Thus, argues Plaintiff, the first prong of the Del...

To continue reading

Request your trial
5 cases
  • Knb Enterprises v. Matthews
    • United States
    • California Court of Appeals Court of Appeals
    • 17 d4 Fevereiro d4 2000
    ...of other similar cases. We will briefly discuss some of the most relevant cases to assist our analysis. 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 photogra......
  • Gridiron.Com v. National Football League Player's, 99-6837-CIV.
    • United States
    • U.S. District Court — Southern District of Florida
    • 11 d2 Julho d2 2000
    ...The Right to Privacy is limited to the extent reasonably required to convey the news to the public. Hoffman v. Capital Cities/ABC, Inc., 33 F.Supp.2d 867, 872 (C.D.Cal.1999); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977). Plaintiff seeks to ......
  • Ferriss v. Alliance Publ'g, Inc.
    • United States
    • U.S. District Court — Northern District of California
    • 6 d2 Dezembro d2 2016
    ...case. Clark v. America Online Inc., 2000 WL 33535712, at *8 (C.D. Cal. Nov. 30, 2000); see also Hoffman v. Capital Cities/ABC, Inc., 33 F.Supp.2d 867, 875 (C.D. Cal. Jan. 22, 1999) (celebrity entitled to compensatory damages in an amount representing the fair market value of the right to ut......
  • KNB Enterprises v. Matthews
    • United States
    • California Court of Appeals Court of Appeals
    • 17 d4 Fevereiro d4 2000
    ...of other similar cases. We will briefly discuss some of the most relevant cases to assist our analysis. 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 photog......
  • Request a trial to view additional results
2 firm's commentaries

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT