9th Circuit judge analyzes Paris Hilton's cartoon body

By Eriq Gardner

Any case that involves Paris Hilton begs to be mocked, but Hilton's battle against greeting card maker Hallmark is shaping up as potentially important in the realm of publicity rights.

Hilton sued Hallmark after the company featured a greeting card with a scene seemingly ripped from her reality TV show "The Simple Life" with a caption that read "Paris's First Day as a Waitress." Here's a picture of the card:

Hilton claimed Hallmark violated her publicity rights and infringed her registered trademark of the phrase "That's Hot." Hallmark countered by filing an anti-SLAPP motion against Hilton, claiming she filed a frivolous claim that abridged the card company's free speech.

A lower court threw out Hilton's trademark claim. Today, a three-judge panel of the U.S. 9th Circuit Court of Appeals rejected Hallmark's protected speech argument and affirmed that the publicity rights battle can continue.

The question now becomes whether the greeting card transformed Hilton's likeness into Hallmark's own expression. A "transformative" use of a copyright is "fair use," and in today's decision, Judge Diarmuid O'Scannlain weighs the facts:

"To be sure, there are some differences between the waitressing Hilton does in the 'Simple Life' episode and the portrayal in Hallmark's card. Hilton's uniform is different, the style of the restaurant is different,...and the food is different...In the card, the body underneath Hilton's over-sized head is a cartoon drawing of a generic female body rather than a picture of Hilton's real body. Finally, Hilton's catchphrase appears consistently in its familiar, idiomatic meaning. Despite these differences, however, the basic setting is the same: we see Paris Hilton, born to privilege, working as a waitress."

Because the 9th Circuit is weighing a pre-trial motion, it is limited to deciding whether each side has a chance at victory. Judge O'Scannlain rules that Hilton "has at least some probability of prevailing on the merits" and thus dismisses Hallmark's motion to strike but won't go so far as granting Hilton summary judgement. Meaning, the case goes back to a lower circuit, which will look at the greeting card more closely and figure out whether the use of Hilton's likeness is "transformative" or not.