9th Circuit judge analyzes Paris Hilton's cartoon bodyMon Aug 31, 2009 @ 04:38PM PST
By Eriq Gardner
"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.