Trial courts have had a tough time lately figuring out the difference between editorial speech and advertisements. Judges once knew the difference. If an editor wanted to feature a celebrity in a story, no approval was needed. If an advertiser wanted to put a star in an ad, permission was required.
But that was before digital technology. What happens when a clever editor uses a computer to wrap unsuspecting Hollywood celebrities in the latest fashions?
That's what Los Angeles magazine did in 1997, illustrating a style story with celebrities—Cary Grant, Marilyn Monroe, Dustin Hoffman, even the Creature from the Black Lagoon—decked out in creations from prominent designers. (Ever the athlete, the Creature sported Nikes.)
Grant, Monroe and the Creature surely didn't mind. But Hoffman was steamed. The magazine had taken a photo of him from the movie Tootsie in which he wore a red sequined evening dress and altered it—replacing his body with that of a male model in the same pose, wearing a spaghetti-strap evening dress and high-heeled sandals. The copy read: "Dustin Hoffman isn't a drag in a butter-colored silk gown by Richard Tyler and Ralph Lauren heels."
The actor promptly filed suit against the magazine, arguing that his name and likeness were unlawfully used for commercial purposes.
"If I were to be asked to be a model selling clothes, it would be worth millions of dollars," he said at the ensuing trial. The court agreed, awarding him $3 million, despite the magazine's argument that the photo was protected speech.
Every editor in the country should have shuddered at that decision. "How could any magazine talk about fashion, film and other items of interest without it being deemed commercial speech?" asks John Hendrickson, a partner in the Los Angeles office of New York law firm Hall Dickler Kent Goldstein & Wood, who specializes in advertising law.
Good question. And with technology improving all the time—witness the effects in the new movie Final Fantasy: The Spirits Within—editorial and commercial speech are likely to be increasingly vulnerable to attack as they get more sophisticated.
Any time a court chips away at sacred categories of protected speech, everyone loses. As John Milton said in a speech to England's parliament in 1643, censorship can only lead to "a gross, conforming stupidity." That's still true today.
The magazine appealed, and the U.S. Court of Appeals for the Ninth Circuit got it right, reversing the decision this month by calling the story "a combination of fashion, photography, humor and visual and verbal editorial comment."
A trial court goofed in another recent California case. This time, retailer Abercrombie & Fitch published without permission a risqué photo of some legendary surfers in a section of its product catalog, and the wave riders sued. In this case, the catalog was clearly an advertisement, but the court sided with the retailer.
The Ninth Circuit, which is considering the appeal, has a chance to correct the lower court's decision. Let's hope they get it right again.