The Court Gets its Digs, and Paris Gets Her Day in Court

If you've not been following it (and why would you be), the Ninth Circuit Court of Appeals issued a decision last week in Paris Hilton v. Hallmark Cards, [pdf] no. 08-55443 (August 31, 2009). The suit involves a card, produced by Hallmark Cards, that shows a cartoon character with Paris's head on it (pic related, it's the card). Hilton claimed that Hallmark had violated her right of publicity under California law (specifically, California Civil Code § 3344). The District Court allowed Hilton's publicity rights claim over Hallmark's objection (among others) that it was entitled to dismissal based on California's "anti-SLAPP" statute (California Code of Civil Procedure § 425.16). The District Court also dismissed Hilton's trademark claim (see below), and Hilton didn't appeal that part of the decision.

The Ninth Circuit, after sorting through a number of procedural issues (which I won't get into here as they're not my bailiwick, but they provide interesting reading for federal jurisdiction types), finally reaches the only element of the case it wants to discuss. It finds that Hallmark cannot use the anti-SLAPP statute to end the litigation quickly (because Hilton actually could win), but instead sends the case back down for factual determinations regarding the potential that Hallmark's use was transformative under California law.

What's interesting to me isn't the Court's consideration of the substance of the questions (I think they probably got that right in this case, though I have issues relating to control over images of public people that the case touches on, those aren't why I'm writing here); what's interesting to me is the way in which the Court deals with the clearly cultural and popular aspects of the case. For example, from the start of the case:

Paris Hilton is a controversial celebrity known for her lifestyle as a flamboyant heiress. As the saying goes, she is “famous for being famous.”

She is also famous for starring in “The Simple Life,” a so-called reality television program. The show places her and fellow heiress Nicole Ritchie in situations for which, the audience is to assume, their privileged upbringings have not prepared them. For example, work. In an episode called “Sonic Burger Shenanigans,” Hilton is employed as a waitress in a “fast food joint.” As in most episodes, Hilton says, “that’s hot,” whenever she finds something interesting or amusing. She has registered the phrase as a trademark with the United States Patent & Trademark Office.

[emphasis added]

I wonder about this section. "Famous for being famous." "So-called reality television program." "For example, work." My initial reaction was, "Well, he's pegged her." I have little tolerance for Hilton, the press that aggrandizes her, or other so-called attention seekers. The idea of being famous just to be famous is something I think society (and the law) should not encourage, though in this age of reality shows it does seem to be here for good.

But in this case, Hilton, regardless of whether we like how she came to hold those rights, does in fact likely hold them. What does the introduction of what are pretty clearly personal digs at Hilton and her TV show do for the legal analysis here? If nothing (and I think the answer is nothing), why are they there? The Court doesn't use them in constructing its argument, and Hallmark has apparently not argued that she is not deserving of protection under California's statute (probably because it's pretty clear that she is, in general, protected under California's right of publicity statute). The Court makes no grand statement about the state of culture in America (or the world); these digs just sit there. Permanently (the case is to be published).

I will admit that at first I laughed at some of the above. But is it really necessary or appropriate for a Federal Court to take "digs" at litigants in federal litigation (even if the litigant who got "dug" wins on appeal)? I doubt that it is.

Comments

[www.facebook.com/profile.php?id=12619680]

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).