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Hilton v. Hallmark Cards

Court of Appeals for the Ninth Circuit
599 F.3d 894 (2010)
ELI5:

Rule of Law:

A work using a celebrity's likeness is not entitled to a First Amendment "transformative use" defense as a matter of law if it does not contain significant transformative or creative contributions beyond the celebrity's persona, thus allowing the celebrity's right of publicity claim to proceed.


Facts:

  • Paris Hilton is a well-known celebrity famous for starring in the reality television program 'The Simple Life.'
  • In one episode, Hilton works as a waitress in a fast-food restaurant.
  • Hilton is widely known for her catchphrase, 'that’s hot,' which she has registered as a federal trademark.
  • Hallmark Cards created and sold a birthday card titled, 'Paris’s First Day as a Waitress.'
  • The card's cover features a cartoon waitress body with a photograph of Hilton's head superimposed on it.
  • In a dialogue bubble on the card, the Hilton character says, 'That’s hot,' in response to a customer asking about a plate of food.
  • Hilton did not consent to Hallmark's use of her image, likeness, or catchphrase for the card.

Procedural Posture:

  • Paris Hilton filed suit against Hallmark Cards in U.S. District Court, alleging misappropriation of publicity, among other claims.
  • Hallmark filed a motion to dismiss under FRCP 12(b)(6) and a special motion to strike the right of publicity claim under California's anti-SLAPP statute.
  • The district court denied the motion to strike and the motion to dismiss the right of publicity claim.
  • Hallmark, as appellant, appealed the district court's denial of its motions to the U.S. Court of Appeals for the Ninth Circuit, with Hilton as appellee.

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Issue:

Is a celebrity's right of publicity claim, based on the unauthorized use of her image and catchphrase on a commercial greeting card, likely to succeed on the merits for purposes of defeating an anti-SLAPP motion to strike, where the card's creator asserts a First Amendment 'transformative use' defense?


Opinions:

Majority - O’Scannlain

Yes. A celebrity's right of publicity claim demonstrates the requisite probability of success to defeat an anti-SLAPP motion when the defendant's work is not sufficiently transformative as a matter of law. The court applied California's two-step anti-SLAPP analysis. At step one, the court found Hallmark met its burden to show that Hilton's lawsuit arose from protected speech, as the card involved a matter of public interest—namely, a public figure. At step two, the burden shifted to Hilton to show a probability of prevailing on her claim. This required evaluating Hallmark's First Amendment defenses. The court rejected Hallmark's 'public interest' defense, holding it applies to news reporting, not commercial products. The court then analyzed the 'transformative use' defense, asking whether the work adds significant new expression or is merely the 'sum and substance' of the celebrity's likeness. Comparing the card to precedents like Kirby (a video game character) and Winter (comic book characters), the court found Hallmark's card lacked significant creative contribution. Although some details were changed, the basic setting of Hilton as a waitress was not transformed enough to make it primarily Hallmark's own expression. Because a trier of fact could reasonably conclude the use was not transformative, Hilton established the minimal merit required to defeat the motion to strike.



Analysis:

This decision reinforces the boundaries of the transformative use defense, clarifying that minor alterations or placing a celebrity in a familiar, parodied context is not enough to defeat a right of publicity claim at an early procedural stage. By treating the transformative use question as a factual inquiry, the court makes it more difficult for defendants to use anti-SLAPP motions to quickly dismiss such lawsuits. The ruling signals that courts will carefully scrutinize commercial products that exploit a celebrity's fame, weighing the celebrity's property rights in their persona heavily against First Amendment claims unless the work contains substantial creative and transformative elements. This strengthens the position of celebrities in protecting their image from unauthorized commercial appropriation.

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