Paris Hilton 'That's Hot' Case Is Heating Up

Posted by Matthew Heller

A federal judge in Los Angeles may be forced to watch an episode of the reality show "The Simple Life" before he decides whether a Paris Hilton greeting card is entitled to the free-speech protections of California's anti-SLAPP statute.

As we previously posted, the hotel heiress and frequent litigator sued Hallmark Cards in September, claiming a card that depicts her as a waitress misappropriates her name and likeness and violates her trademark in the phrase "That's hot." Hallmark contends Hilton is trying to squelch a parody that constitutes a "transformative" fair use.

Documents filed in connection with Hallmark's motion to dismiss the case -- which U.S. District Judge Percy Anderson is due to hear Dec. 17 -- feature radically different comparisons of the card and an episode of "The Simple Life" in which Hilton works as a waitress. "[T]here is nothing 'transformative' about Hallmark’s greeting card," Hilton attorney Brent Blakely of the Blakely Law Group in Hollywood insists in an opposition brief. "... Indeed, the card is a rip-off of the episode Sonic Burger Shenanigans."

Blakely cites the publicity rights precedent of Comedy III Productions v. Sarderup, 25 Cal.4th 387 (2001), for the proposition that

when, as here, “artistic expression takes the form of a literal depiction of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist.”

Hallmark attorney Lincoln Bandlow of Spillane Shaeffer Aronoff Bandlow in Century City counters in a reply brief that the card adds "significant creative elements." While the TV segment features Hilton in red shirt, yellow baseball hat and "acting as a car hop at a fast food restaurant,"

the Card shows a hatless Hilton in a light blue shirt, white apron and oven mitt serving a plate of food to a customer seated at a counter in a sit-down restaurant.

Regrettably perhaps, neither lawyer discusses whether the phrase "fruits of artistic labor" should be applied to an episode of "The Simple Life."