First amendment cases: sometimes they’re hot.
Paris Hilton is officially “a topic of widespread, public interest”, according to the 9th Circuit. But while Hallmark using her “that’s hot catchphrase” on birthday cards is free speech, Hilton might get damages for the card company’s use of a picture of her portraying a waitress.
Two years ago, Hilton sued Hallmark for trademark infringement and misappropriation of publicity after Hallmark sold birthday cards featuring her in a waitress outfit telling customers, “Don’t Touch That, it’s hot.” When the customer asks what’s hot, Hilton says, “That’s Hot.”
The 9th Circuit ruled in August that, despite Hilton’s contention that she has registered the phrase “that’s hot” as a trademark, Hallmark’s use of the phrase and her picture is protected as free speech. But, the Court said, Hallmark could not rely on its use of her likeness as being in the “public interest” because it was not reporting information, just selling a card. And because the image is similar enough to an episode of Hilton’s reality show “The Simple Life” where she works as a waitress, Hilton can move forward with her appropriation of likeness claim. (Law.com has a thorough analysis of the lawsuit and relevant precedent.)
Hallmark recently asked the Court to reconsider, saying its picture of Hilton was distinct enough from the episode to constitute free speech and warned that the Court’s first interpretation of the relevant “transformative use” standard “has far-reaching, speech-prohibitive implications to speakers who look to the ‘Court of Appeals for the Hollywood Circuit’ for guidance on important First Amendment issues.”
Law.com quotes both Hilton’s and Hallmark’s attorneys, who agree that the issue is how distinct Hallmark’s picture is from The Simple Life episode, though of course they disagree about how relevant caselaw – a Dustin Hoffman likeness holding – applies.
So Hilton, Hoffman and Hallmark are all playing roles in an interesting free speech lawsuit. But we can’t get past the image of the 9th Circuit judges nodding in agreement that Hilton is a topic of widespread interest. Or maybe we just shudder at the fact that they are, without a doubt, correct.
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