Fwd: Legal Insights for Entertainment and Multimedia, Attorney Mark Litwak

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From: Mark Litwak <la...@marklitwak.com>
To: clay...@aol.com
Sent: Tue, Nov 9, 2010 10:07 am
Subject: Legal Insights for Entertainment and Multimedia, Attorney Mark
Litwak

on line blog http://marklitwak.blogspot.com/

In This Issue

PARIS HILTON LAWSUIT

UPCOMING SEMINARS

November 9, 2010

PARIS HILTON'S "THAT'S HOT"

According the N.Y. Post, Hallmark Greeting Cards has settled a lawsuit
with Paris Hilton after she sued Hallmark for releasing a card using
her trademarked phrase "that's hot."
 
Paris Hilton is a celebrity known for her lifestyle as a flamboyant
heiress and her role in the reality TV program "The Simple Life."  The
series placed her and fellow heiress Nicole Ritchie in situations where
their privileged upbringing may not have prepared them for ordinary
tasks that working class folks regularly perform. In many episodes
Hilton stated "that's hot," whenever she found something out of the
ordinary or humorous.  She registered the phrase as a trademark in 2007
with the United States Patent & Trademark Office.
 
Later that year, Hallmark released a card parodying Hilton's "First Day
as a Waitress" that used the phrase. Hilton claimed that the card's
depiction copied too closely a scene that she made famous on her
television series. The card juxtaposes a female face with a cartoon
drawing of a waitress's body, with the composite woman performing the
tasks of a waitress and saying Hilton's trademark phrase. Hilton
herself wore a waitress's uniform, served customers, and said, "That's
hot," in an episode of "The Simple Life." However, Hilton did not claim
that the card literally depicted her.
 
Hilton filed suit asserting three causes of action, misappropriation of
publicity under California common law; false designation under the
Lanham Act; and infringement of a federally registered trademark.
Hallmark moved to strike Hilton's right of publicity claim under
California's anti-SLAPP statute. "SLAPP" stands for "strategic lawsuit
against public participation. It is a law designed to stop attempts to
chill a person from exercising their First Amendment rights on a matter
of public interest by forcing them to incur the expense and bother to
defend against a meritless and abusive lawsuit. In other words,
sometimes plaintiffs file lawsuits against defendants without merit
just to shut them up and intimidate them. Such suits can stifle a
defendant from speaking out, especially if the plaintiff is a
well-heeled company and the defendant an ordinary citizen without the
means to hire lawyers to defend his/her rights. The lower court denied
Hallmark's motion to strike under California's anti-SLAPP statute.
 
Hilton's claim was for misappropriation of the common law right of
publicity. The elements of the claim under California law are "(1) the
defendant's use of the plaintiff 's identity; (2) the appropriation of
plaintiff 's name or likeness to defendant's advantage, commercially or
otherwise; (3) lack of consent; and (4) resulting injury." Hallmark did
not dispute that Hilton meets these requirements. Hallmark, however,
claimed two affirmative defenses under California law, both based on
the First Amendment: the "transformative use" defense and the "public
interest" defense.
 
Under California law, "when an artist is faced with a right of
publicity challenge to his or her work, he or she may raise an
affirmative defense that the work is protected under the First
Amendment because it contains significant transformative elements or
that the value of the work does not derive primarily from the
celebrity's fame."
 
In regard to the public interest defense, California law holds that "no
cause of action will lie for the publication of matters in the public
interest, which rests on the right of the public to know and the
freedom of the press to tell it." This defense did not help Hallmark,
because it only precludes liability for "the publication of matters in
the public interest." The birthday card did not publish or report such
information.
 
The case went up to the Ninth Circuit Court of Appeals, with Hallmark
claiming its First Amendment right to free speech insulated it from
liability. The appeals court rejected Hallmark's appeal, however, and
the suit was scheduled to go to trial as early as December if the
parties had not settled.  The court did not find that Hilton was
entitled to a judgment as a matter of law, only that there was at some
probability of her prevailing on the merits if it went to trial, and so
it would not be dismissed.
 
The amount of the settlement was not revealed.
Read full case at: Decision

 

UPCOMING SEMINARS with Mark Litwak
BOSTON,  February 11, 2011,

UCLA, February 19, 2011

DALLAS April 9, 2011

More details soon!

 

Mark Litwak is an entertainment attorney, author and expert witness 
based in Beverly Hills, California. His practice includes work in the
areas of copyright, trademark, contract, multimedia law, intellectual
property, and book publishing. As a Producer's Representative, he
assists filmmakers in arranging financing, marketing and distribution
of their films. His filmmaker clients have had award winning films in
Cannes, Toronto, Telluride and other festivals.

Mark Litwak
Law Offices of Mark Litwak & Associates

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