Bit Parts

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.”

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