Paris Hilton vs. Hallmark: Publicity rights, First Amendment collide

Thursday, March 18, 2010

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Editor's note: The 9th Circuit denied review of the case on March 23.

What do Cher, Vanna White, Dustin Hoffman and Paris Hilton have in

Aside from celebrity status, they’ve all asserted right-of-publicity claims
under California law for alleged improper use of their names, likenesses or
images by others for commercial profit.

The cases of Cher, White and Hoffman were decided in different decades:
Cher’s in the early 1980s, White in the ’90s and Hoffman in the early 2000s.
Hilton’s case against the Hallmark card company, however, is still going and
represents a choice example of the continuing clash between the First Amendment
and the right of publicity.

Hilton sued Hallmark in 2007 over a greeting card that features a cartoon
figure of a waitress with Hilton’s head on top with the caption, “Paris’s First
Day as a Waitress.” The card shows Hilton saying to the customer, “That’s hot” —
a phrase she used frequently in her reality television show, “The Simple Life.”
The inside of the card reads: “Have a smokin’ hot birthday.”

Hilton’s lawsuit alleges misappropriation of publicity under California law,
as well as other claims, including trademark infringement. Hallmark moved to
dismiss the publicity claim as a SLAPP suit — “strategic lawsuit against public
participation,” a meritless legal action often filed by corporate entities
against individuals instead of the other way around. A federal district court
dismissed the special motion to strike Hilton’s publicity claim under the
anti-SLAPP statute.

On appeal, a three-judge panel of the 9th U.S. Circuit Court of Appeals also
refused to reject the publicity claim in its Aug. 31, 2009, decision in Hilton
v. Hallmark.

Hallmark has now filed a petition for review by the full panel (called en
banc review) of the 9th Circuit. In its motion, Hallmark writes: “The Panel’s
unprecedented finding that the publicity rights of an iconic celebrity may trump
the First Amendment in the context of fully-protected speech that spoofs that
celebrity … creates uncertain and unreliable legal standards that will
drastically chill speech if allowed to stand.”

In such collisions between publicity rights and the First Amendment, the
“right of publicity” refers to a property right — the right to the commercial
value that an individual has in his or her name, likeness or other form of
identification. Coined by Judge Jerome Frank in 1953, the right of publicity is
related to the more commonly known right of privacy. In fact, in some states the
term right of publicity is considered virtually synonymous with the privacy
claim of appropriation or misappropriation.

However, the classic appropriation case involves someone who is embarrassed
or humiliated by unwanted displays of his or her image. Right-of-publicity cases
are usually filed by celebrities not because they’re embarrassed by displays of
their image, but because they want to be compensated for such displays and to
combat commercial exploitation.

If Hilton’s publicity claim succeeds, then Hallmark cannot make cards that
spoof celebrities without compensating them. Publicity rights will have defeated
the First Amendment right to free expression.

Hallmark claims that its use of Hilton’s likeness is a transformative use.
Transformation is a First Amendment based-defense that asserts a defendant has
so transformed the plaintiff’s likeness or image that it becomes the defendant’s
own expression. Hallmark says its card was transformative because it used a
cartoon description and had other differences.

But Hilton countered that the card was essentially a rip-off of an episode of
“The Simple Life,” in which Hilton worked as a waitress. The 9th Circuit panel
sided with Hilton, writing that despite differences in depiction, “the basic
setting is the same; we see Paris Hilton, born to privilege, working as a

Hallmark and Hilton now have to wait to see if the 9th Circuit will grant en
banc review. The chief judge of the 9th Circuit, Alex Kozinski, wrote a
passionate dissent in White v. Samsung Electronics (the Vanna White
case), warning against the dangers of expanding the right of publicity at the
expense of the First Amendment. “Intellectual property rights aren’t free:
They’re imposed at the expense of future creators and of the public at large,”
he wrote.

The case of Paris Hilton and Hallmark could be a watershed in determining how
to balance publicity rights with the First Amendment.

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