SAN FRANCISCO — An appeals court has ruled that Paris Hilton can pursue a lawsuit against Hallmark Cards Inc. over the use of her picture and catchphrase "That's hot" on a greeting card.
The hotel heiress sued the company in 2007 after it began selling without her permission birthday cards of a cartoon of a waitress serving a plate of food to a patron. A photo of Hilton's face was pasted on the cartoon's body.
According the ruling in Hilton v. Hallmark, the front of the card includes a caption that reads, “Paris’s First Day as a Waitress.” “Hilton says to the customer, ‘Don’t touch that, it’s hot.’ The customer asks, ‘what’s hot?’ Hilton replies, ‘That’s hot.’ The inside of the card reads, ‘Have a smokin’ hot birthday.’”
Hilton alleges that Hallmark violated her rights of privacy and publicity and that the card ripped off her appearance as a waitress in an episode of her reality television show "The Simple Life."
On Aug. 31, a three-judge panel of the 9th U.S. Circuit Court of Appeals upheld a lower court's ruling allowing the bulk of Hilton's lawsuit to proceed. Hallmark has defended the card as parody, which is normally protected under fair-use law.
The 9th Circuit analyzed and rejected Hallmark’s claim that the card was “transformative” enough to be entitled to protection under the First Amendment.
Hallmark lawyer Lincoln Bandlow told Reuters that "the analysis of the First Amendment defense is incorrect. It will leave a lot of speakers subjected to meritless right of publicity claims."