Well, okay, Paris Hilton didn’t technically win the lawsuit. The parties settled – but only after Hallmark failed in its attempts to get the lawsuit dismissed. The terms of the settlement have not been disclosed. However, my bet is Hallmark made a monetary payment or other concessions to Hilton even though it’s doubtful that either party admitted wrong-doing.
What Did Hallmark Do?
Hallmark released a birthday card with an image of Hilton’s head super-imposed on a cartoon waitress’ body. The card has the words “That’s hot”, a catch-phrase Hilton often used in the reality tv show, Simple Life, and for which Hilton holds a trademark registration. In fact, the card re-creates a well-known scene from Simple Life.
Hilton sued Hallmark for violation of her right of publicity and other claims. I believe the right of publicity violation was Hilton’s strongest claim. To win a right of publicity claim, Hilton needed to demonstrate that her identity has commercial value (not hard for Hilton who licenses her name and persona for various products) and that Hallmark used her identity without her consent for commercial purposes.
Hallmark’s Defense
Hallmark’s defenses to Hilton’s right of publicity claim included transformative use and the public interest defense. Hallmark could not convince a 9th Circuit court to dismiss Hilton’s lawsuit on the basis of either defense. I’ll discuss the transformative use defense in greater detail.
When you transform a celebrity likeness, you add enough creative elements to the im¬age to express something new. If you are expressing something new with the celebrity’s image, the First Amendment protects your right to use the celebrity’s image. For example, a right of publicity lawsuit in which the transformative use defense succeeded involved Artist Rick Rush’s depiction of Tiger Woods in the visual artwork, The Masters of Augusta.
Hallmark Card Not Sufficiently Transformative
The court did find differences between Hilton’s appearance in the Simple Life episode and the Hallmark card:
- Hilton’s uniform is different.
- The style of the restaurant is different (drive-through service rather than sit-down service).
- The food is different (burgers-and-fries rather than diner-style bacon and eggs).
- The card uses a cartoon drawing of Hilton’s body rather than a picture of Hilton’s real body.
Those differences were just insufficient for dismissal of Hilton’s lawsuit. In the court’s view, the basic settings of the card was the same as the Simple Life scene: Paris Hilton, born to privilege, working as a waitress.
