That's Hot: Greeting Card Case May Put Paris Hilton's Name on Legal PrecedentFri Jan 18, 2008 @ 06:10PM PST
Posted by Matthew Heller
Could this be the end of the legal world as we know it? A case involving Paris Hilton is now before the 9th Circuit and may generate a decision with significant precedent value in the world of publicity rights.
As we have previously posted here and here, 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." And she avoided an early dismissal of the case as a Los Angeles judge found that Hallmark cannot invoke the free-speech protections of California's anti-SLAPP law.
"[T]he Court is unable to conclude, at this stage of the proceedings, that the card is significantly transformative" under the fair use defense, U.S. District Judge Percy Anderson said in a minute order. "Put another way, the potential exists that the card is sufficiently evocative of an image Hilton has presented of herself that Hallmark is capitalizing on her notoriety."
A "more fact-intensive analysis of the card's context and Hilton's public image" is required to determine whether the card is protected as a parody, he said.
Hallmark filed a notice of appeal at the 9th Circuit last week. "This is not a company selling soda pop, but one that's in the business of conveying messages," says its attorney, Lincoln Bandlow of Spillane Shaeffer Aronoff Bandlow in Century City. "If you can't poke fun at a celebrity because of the threat of a right of publicity action, we will lose some potentially important speech."
According to Bandlow, no further facts are necessary to determine that the card is a transformative use of an episode of the reality show "The Simple Life" in which Hilton works as a waitress. A tape of the episode was in evidence, he notes, and "you can see that the card shows her in a very different way than she looks in 'The Simple Life.'"