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www.winston.com

October 2009

SPECIAL ALERT

Use of Celebrity Image in Greeting Card May Violate Publicity Right

Paris Hilton sued Hallmark Cards after a Hallmark birthday card contained a picture of Paris Hilton’s head super-imposed on a cartoon’s body with a caption that read, “Paris’s First Day as a Waitress” and included Hilton’s catch-phrase “That’s hot.” Hilton sued Hallmark for violation of her right of publicity as well as violations of the Lanham Act. Hilton alleged that Hallmark lifted the entire scene on the card from an episode of her television show, the “Simple Life.”

Hallmark moved to strike the right of publicity claim under California’s anti-SLAPP statute which bars meritless lawsuits filed for the purposes of keeping someone from exercising their First Amendment rights on a matter of public interest. The district court denied Hallmark’s motion and the Court of Appeals for the Ninth Circuit affirmed, finding that the anti-SLAPP statute did not bar the action because Hilton’s right of publicity claim was not meritless. The Ninth Circuit concluded that Hilton had at least some probability of prevailing on the merits in part because Hallmark’s use of Hilton’s image was not transformative as a matter of law and Hallmark’s public interest defense was inapplicable since the birthday card did not publish or report information.

TIP: Use of a person’s name or image on a commercial product presents a high risk of complaint, even if you may have a potential fair use defense.