Having served as Paris Hilton’s licensing attorney in a previous life, I am obligated to preserve the confidences of my former client.
So please understand if I report the following case without editorial comment and/or sarcastic innuendo about “intellectual property.” No, I will leave that to others.
To wit, Paris prevailed before a federal appeals court in her claim that Hallmark Cards may have misappropriated her right of publicity with a birthday card titled “Paris’s First Day as a Waitress” that featured a photograph of the hotel heiress’ head on a cartoon figure of a waitress, delivering a plate of food to a customer with her catchphrase “That’s Hot.”
Under the law of California and most other states, commercial use of a person’s image without permission is normally a violation of her right of publicity. But Hallmark had argued successfully to the trial court that the claim should be dismissed, because its cartoon figure sketch of Paris had added sufficient original content such that it qualified under the “transformative use” doctrine in California, so that the First Amendment trumped the California right of publicity claim.
However, the appeals court sided with Paris. The court did not have to rule on the merits of the issue, but ruled that the birthday card was not transformative enough under California law to automatically qualify for First Amendment protection, at least not without a much closer look by the trial court. For that reason, it reinstated the claim and sent it back to the trial court to decide whether it had sufficiently transformed Paris Hilton’s image, or was mainly free-riding on her fame.
Takeaway: tread very carefully when using a celebrity look-alike or sound-alike in any non-news, commercial context. The use may qualify for First Amendment protection, because it is a parody or has been “transformed” by sufficient original content, but it is often difficult to predict how a court will rule on these issues. The case law on “transformative use,” especially, is all over the map, as Hallmark’s lawyers discovered.