THE CARICATURIST’S QUARTERLY Sculpting Paris Hilton: Step-by-step inside! Forum Etiquette Where is Okie’s Hat? Right of Publicity: Lessons from Paris Hilton by Meaghan v. Hallmark Cards Hemmings Kent A recent right of publicity case in California is not only interesting in its subject matter, involving a celebrity heiress and mega card company, but is legally interesting. In particu- lar, the right of publicity is central to the case and the decision provides good lessons for artists such as yourselves. Jones Court by Caricature Right of Publicity Background right of publicity for their use of her Lessons Learned image on a birthday card as well as As a refresher, the right of publicity is a In the meantime, even where the First trademark infringement of her catch- person’s exclusive right to benefit from Amendment, be it parody, social com- phrase. Hallmark attempted to have and control the commercial use of their mentary, or lampooning, is an arguable the case dismissed essentially argu- name, likeness or persona. It provides defense, which is often the case with ing that the card was protected by free that to use someone else’s name, like- caricatures, if you or another party are speech. To defend this way, Hallmark ness or persona in a commercial way, using someone else’s image, name or you need their permission. had to show, among other things, that likeness it in a commercial way you may the card’s use of Hilton’s likeness/image The right of publicity varies from state to be in hot water. Recall that a commercial was “transformative.” state, with some states having statute use may include advertisements, use and some relying on common law (case You may recall that in California, argu- on products, such as t-shirts, cards, or law). For more background, take a look ing that a work is “transformative” can mugs, or mass sales of your artwork. back at your Winter 2009 EF “Legal Mat- be a defense to violation of the right of Although your defense may ultimately ters for the Artist” for a primer on right publicity. There are several ways that this be successful, ask yourself whether you of publicity law. California has a fairly test has been stated, including whether really want to have to use it. Defending in-depth right of publicity statute, the product is “so transformed that it has yourself may involve litigation and will as do other entertainment industry- become primarily the defendant’s own likely have to be determined by a jury or centric states, such as New York and expression rather than the celebrity’s judge, leaving you to defend the case Tennessee. Another interesting tidbit is likeness” or whether the artist’s skill through trial – a costly endeavor. that California (and Washington state, and talent has been used to create a In order to protect yourself, get with others to likely follow) recently transformed work (not a violation) or a permission. If you plan to use a revised their statutes to strengthen the conventional portrait of a celebrity (a vio- person’s image in a commercial way, right of publicity for post-mortem rights. lation). Take a look at the Winter 2009 EF be sure that you have permission to use Remember that in some states, the right “Legal Matters for the Artist Article” for a the likeness of anyone who appears in of publicity extends beyond death, so further discussion of transformative and the work. In addition, if you are commis- with these states amending their statutes the spectrum from non-transformative sioned to create the work for another (retroactively) to increase those post- (the charcoal lifelike drawing of Three party, be sure that the commissioning mortem rights, you will need to be even Stooges) to definitely transformative (the party will defend and indemnify you if more careful if you are using the image comic book depicting half-worm/half-hu- there is any litigation. And, as always, or likeness of a dead celebrity. man Autumn Brothers). get any agreements in writing! Case Background In this Paris Hilton case, the California Stay tuned for next issue’s article on The recent California right of publicity Court found that the case could go for- your rights and ways to protect yourself case of interest to caricaturists is Paris ward because the card was not definitely when a commissioning party or licensee Hilton versus Hallmark. The case centers transformative. The court held that it was goes into bankruptcy. around a birthday card that features a ultimately up to a judge or jury as to de- picture of Hilton imposed on a cartoon termine whether the use of her image, in waitress’ body with the headline “Paris’s combination with a theme that resembled Meaghan Hemmings Kent is an intellectual First Day as a Waitress.” The card the theme of her The Simple Life reality property attorney in the Washington, D.C. depicts Hilton telling the customer, “Don’t television show, was sufficiently trans- office of Venable LLP. She advises clients on touch that, it’s hot,” the customer asking, formative to fall under First Amendment all areas of intellectual property law, including “What’s hot?” and Hilton responding with protection. Hallmark appealed and the copyright, trademark, right of publicity, patent, her trademarked catchphrase, “That’s Ninth Circuit agreed with the lower court trade secret, and domain name law. She can hot™.” (It really is a registered trademark, that the case could move forward. Hall- be reached at 202-344-4481 and mhkent@ by the way). The inside of the card reads, mark is further appealing within the Ninth venable.com. The views expressed in this ar- “Have a smokin’ hot birthday.” Circuit and may take it to the Supreme ticle are those of the author, do not constitute In this case, Paris Hilton sued Hallmark Court if necessary. Stay tuned for any legal advice, and should not be attributed to for, among other things, breach of the new rulings. Venable LLP or its clients. .