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LEXSEE 255 F.3D 1180

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

Nos. 99-55563, 99-55686

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

255 F.3d 1180; 2001 U.S. App. LEXIS 15085; 59 U.S.P.Q.2D (BNA) 1363; 29 Media L. Rep. 1993; 2001 Cal. Daily Op. Service 5695; 2001 Daily Journal DAR 6987

October 10, 2000, Argued and Submitted, Pasadena, California

July 6, 2001, Filed

PRIOR HISTORY: [**1] Appeal from the United States District Court for the Central District of California. D.C. No. CV-97-03638-DT. Dickran M. Tevrizian, District Judge, Presiding.

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiff celebrity sued defendant company in state court, alleging defendant subsidiary's publication of an altered photograph of plaintiff misappropriated plaintiff's name and likeness under state and federal law. The case was removed to the United States District Court for the Central District of California. Defendant subsidiary was added as a defendant. Defendant subsidiary appealed the district court's judgement in favor of plaintiff.

OVERVIEW: 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...