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September 07, 2009

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1L here. We covered this in Contracts last week. Cardozo was taking digs at litigants more than 90 years ago.

"The defendant styles herself 'a creator of fashions.' Her favor helps a sale. . . The things which she designs, fabrics, parasols, and what not, have a new value in the public mind when issued in her name." Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88 (1917).

TJ

I think you are being a bit hard on the court here. Establishing that Hilton is famous, and precisely how, is relevant to the existence and scope of the right of publicity. And "reality" television is something of a misnomer that a judge may not wish to endorse. I do think that "For example, work" is a bit of a gratuitous dig. But that is one instance, not three.

GJELblogger

I agree with TJ. The work thing is a bit gratuitous. But she really IS famous for being famous. And reality television is a relatively new concept--maybe he's explaining that these shows are "so-called." And these are the background facts, so they are necessary.

It's probably still ok to be amused.

Rob Heverly

Zach, that's interesting. I'd be curious about how often this happens, and what kinds of digs judges make (I wondered about that; do you "make" digs or "take" digs?).

I agree, TJ and GJEL, that these other elements could be relevant to the right of publicity, but no one seems to dispute that exists and is applicable here; so the context isn't a dispute about whether she's famous, it's a dispute about how her rights as a famous person play out. The digs seem a little out of place to me given that context.

As for Hilton being famous for being famous, that's a bit circular, isn't it? She must have "become" famous at some point; this is a good way of hinting at the fact that she hasn't "earned" her fame in the traditional way (by exhibiting some skill or another, for example), but I still think it's unnecessary to "go there" in a judicial opinion (even if it does amuse me).

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