Bit Parts

Anti-SLAPP Motion over Paris Hilton Suit Is Denied

The U.S. Court of Appeals for the Ninth Circuit refused to dismiss Paris Hilton's right-of-publicity suit over a Hallmark greeting card. Hilton v. Hallmark Cards, 08-55443. The birthday card features a photo of Hilton's head on the body of a cartoon waitress, saying Hilton's catch-phrase “That's hot.” The card caption states: “Paris's First Day as a Waitress.” Hilton appeared as a waitress in an episode of her reality TV show Simple Life. Hallmark moved to have Hilton's suit dismissed under California's anti-SLAPP law, Calif. Civ. Proc. Code. '425.16, meant to prevent suits that curb free speech rights in matters of public interest. The Ninth Circuit described Hilton as “a controversial celebrity known for her lifestyle as a flamboyant heiress. As the saying goes, she is 'famous for being famous.'” The appeals court added: “There is no dispute that Hilton is a person 'in the public eye' and 'a topic of widespread, public interest.'” Hallmark argued its greeting card was a transformative use, which in California is recognized as a defense to a right-of-publicity claim. But finding Hilton had “at least some probability of prevailing on the merits” of her suit and thus denying Hallmark's anti-SLAPP motion, the appeals court noted: “Hallmark's card, Hilton claims, is a rip-off of [the TV show] episode. Hallmark maintains that its card is transformative because the setting is different and the phrase, 'that's hot,' has become a literal warning about the temperature of a plate of food. ' To be sure, there are some differences '. Despite these differences, however, the basic setting is the same: we see Paris Hilton, born to privilege, working as a waitress.”

DVD Kiosks Company's Anti-Trust Claim Against Universal Moves Forward

The U.S. District Court for the District of Delaware denied Universal City Studios' motion to dismiss an anti-trust claim by Redbox, which rents and sells DVDs through kiosks it places in over 12,000 retail establishments. Redbox Automated Retail LLC v. Universal City Studios LLP, 08-766 (RBK). Redbox alleges it could no longer obtain DVDs of Universal movies from major distribution sources VPD and Ingram after the kiosks operator refused to enter into a direct agreement with Universal. The district court issued an opinion peppered with references to movie titles (e.g., “Redbox maintains that Universal has otherwise failed to 'Do the Right Thing'” and “Redbox began 'Raising Cain'”) The court found in its unpublished ruling: “Plaintiff sufficiently pleaded that Universal has induced or otherwise convinced others to boycott Redbox in distribution of Universal DVDs, producing anti-competitive effects, specifically Redbox's inability to compete in the DVD rental and sales markets of Universal DVDs. Further, the [c]ourt finds that Plaintiff has sufficiently pleaded the illegality of Universal's actions, and that those acts are the proximate cause of economic and other injuries to Redbox. Plaintiff has properly pleaded a claim for a violation of Section 1 of the Sherman Act, and its antitrust claim will not be dismissed.” But the district court dismissed Redbox's allegation of tortuous interference with contract, noting in part: “Because the [Redbox/Ingram] contract does not obligate Ingram unconditionally to deliver Universal, or any, DVDs to Redbox, Ingram's decision not to supply Redbox with Universal DVDs technically is not a breach [and thus not indicative of tortious interference by Universal] of the agreement between Redbox and Ingram.”

Song Suit over Movies Dismissed
For Lack of Personal Jurisdiction

The U.S. Court of Appeals for the Sixth Circuit affirmed dismissal of a suit in Ohio that was filed against California film production companies over the alleged unauthorized use of two of plaintiff Elijah Aaron's songs in the movie Steal Me. Palnik v. Westlake Entertainment Inc., 09-3062. In upholding the dismissal for lack of personal jurisdiction over the producers, the appeals court summarized the complaint's factual allegations as: “1) the defendants participated in making the movie as 'producers' or 'distributors' (Palnik [i.e., Aaron] has since conceded that they are producers); 2) the defendants made money from the movie; and 3) the movie ended up in Ohio by the actions of the original defendants collectively [which included distributors Westlake Entertainment, Blockbuster Inc. and Amazon Inc.] Drawing inferences for Palnik, as we must, these allegations permit two potential conclusions as to the distribution of Steal Me to Ohio. First, our defendants, after making the movie, caused it to be distributed to Ohio through a national or regional distribution contract. Second, our defendants, for whatever reason ' because they do not own the distribution rights, because they deferred entirely to a third-party distributor, or for another reason that gave them no control over the movie's distribution ' were not responsible for the movie appearing in Ohio.” The appeals court concluded: “Because one conclusion supports jurisdiction and the other does not, Palnik's complaint remains unclear as to jurisdiction. ' The allegations do not sort out the relationship between the defendants: Cineville and Production Entertainment may have produced the film, but a production company does not necessarily own the distribution rights or control how distribution is accomplished.”