Celebrities work hard to create a public interest. Celebrities like Paris Hilton capitalize on this interest earning money for endorsements, appearances, and entertainment roles. While it is important to protect the intellectual property rights of this persona, we must be careful to also protect free speech rights. First will I look at the substantive law surrounding the right to publicity then explore why Hallmark's work is protected under the First Amendment.
The First Amendment of the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Additionally, Article 1 Section 2 of the California Constitution allows that “[e]very person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” The California legislature effectively codified the freedom of speech guarantees found in the United States and California Constitutions:(a) Any person who knowingly uses another's name, . . . photograph, or likeness, in any manner, on or in products . . . shall be liable to the injured party or parties[.] (d) For purposes of this section, a use of a name, . . . photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a). [1]
The constitutional guarantees of freedom of expression apply equally to publications, whether it is a news report or an entertainment feature; therefore, newsworthiness is not limited to “news” pertaining to current events. [2] Furthermore, it is the respondent’s burden to demonstrate that the facts published about him were not newsworthy. The contents of the publication are protected as newsworthy only if they have some substantial relevance to matters of legitimate public interest. [3] Newsworthiness is not governed by tastes or limited interests of an individual judge or juror; a publication is newsworthy if some reasonable members of the community could entertain a legitimate interest in it. [4] Public interest, in published matters that allegedly appropriate name or likeness, attaches to people who by their accomplishments or mode of living create bona fide attention to their activities. [5]
The scope of the privilege extends to almost all reporting of recent events, even though it involves the publication of a purely private person's name or likeness. [6] There is a public interest that attaches to a person who has achieved “a marked reputation or notoriety by their accomplishments, mode of living, professional standing or calling.” [7] The accomplishments and way of life of such persons may legitimately be mentioned and discussed in print. [8] This discussion can take place through satire.
Due to the Paris Hilton’s acting and music career and recent stay in jail, she has relinquished part of her expectation of privacy. She has, through her choice of career, created a marked reputation, creating legitimate public interest. The card shows Paris Hilton’s head super-imposed over a cartoon waitress with the dialogue: “Don’t touch that, it’s hot. What’s hot? That’s hot.” The interior of the card, the left side reads "The Really, Really, Really, Really, Simple Life." with a cartoon image on Paris sitting in a jail cell. The right side contains the words "I hope your birthday is really, really, really, really, happy." The card is commenting on an image she has created that is of the public interest. The image is one of an airhead who likes to go out to clubs and socialize. Her life is simple and carefree. She goes to many events and parties to expose herself to the media. She makes her living off of endorsements, appearances, movie, and television acting. Her recent arrest and conviction for driving while intoxicated, a news event, adds an interesting perspective to Hilton's life. Perhaps, her life is not as idyllic as she portrayed to the public. Hilton’s past mode of living, as a socialite and a movie star, creates a bona interest in her activities, thereby, creating a valid public interest removing Hallmark from any liability.
It may feel like a stretch to call the card “news”, but the California state statute provides for another exception: (d) For purposes of this section, a use of a name, . . . photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a). [9] Courts have interpreted this to mean that matters of public affairs are exempt from the consent required under California Code section 3344 (d). [10] The term “public affairs” includes not only newsworthy information, but also things that would not necessarily be considered news. [11] Moreover, the public affairs must be related to real-life occurrences. [12] The focus of the card is to compare the recent arrest and jail stay of Mrs. Hilton to the persona the public understood. This persona is a public affair. Her mode of living creates a bona interest in her activities, thereby, creating a valid public interest.
When an artist is faced with a right of publicity challenge to his work, he may use as an affirmative defense that the work is “protected by the First Amendment inasmuch as it contains significant transformative elements. . . ." [13]
Courts look to see if the “celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question.” [14] Courts ask if the product containing the celebrity’s likeness is so transformed that it has become primarily the respondent’s own expression rather than the celebrity’s likeness. The word “expression” means an expression of something other than the likeness of the celebrity. [15] Courts have looked at this from a quantitative rather than a qualitative inquiry, asking if the literal/imitative or the creative elements dominate the work. [16]
Hallmark created a card that held a meaning beyond the image of Paris Hilton. The card significantly transformed the meaning of likeness. The meaning behind the imagine of Hilton's head was most likely to drum up public interested in her. It is important that the public remained interested in her so she could continue to make a living off of endorsements, appearances, etc. The statements, "That's Hot" reminds the public of Hilton's old persona, the carefree Hilton with the catch phrase "That's Hot." This combine with the cartoon of the waitress give that statement new meaning, it reminds the reader of her fall from grace. The interior of the card confirms this. Hilton was arrested. She is fallible, just like everyone else. These statements sufficiently transform the images from merely exerting the likeness of Hilton to creating a new meaning. The new meaning is that no one's life is perfect, not even Paris Hilton's so do not worry about your concerns and have a happy birthday.
Celebrities cannot be surprised when they create a public interest in their actions, that the public will remain interested. There is an understandable desire to protect the image that Hilton has worked hard to develop. It is her mode of living. However, when your mode of living is derived from creating public interests, we cannot be expected to curtail First Amendment rights to protect to Hilton's investment. This is a risk she took in the industry she chose. Hallmark was within its First Amendment rights to comment on Paris Hilton's persona.
[1] Cal. Civ. Code § 3344(a),(d)(West 2007).
[2] See, Gates v. Discovery Communications, Inc., 101 P.3d 552, 562 (Cal.
2004), and Shulman v. Group W Productions, Inc., 955 P.2d 469, 486
(Cal. 1998), and Comedy III Productions, Inc. v. Gary Saderup, Inc., 21
P.3d 797, 803 (2001).
[3] Shulman, 955 P.2d at 478.
[4] Id. at 479.
[5] Dora v. Frontline Video, Inc. 18 Cal. Rptr. 2d 790, 792 (Cal. Ct. App. 2d Dist. 1993).
[6] Rodney A. Smolla, Part II. Invasion of Privacy and Related Torts, Law of Defamation § 10.6 (2d. ed. 2006).
[7] Eastwood v. Superior Court, 198 Cal. Rptr. 342,350 (Cal. Ct. App. 2d
Dist. 1983) (holding that a celebrity has relinquished a part of his
privacy interest to the extent that the public has a legitimate
interest in his doings affairs or character).
[8] Id.
[9] Cal. Civ. Code § 3344 (a),(d)(West 2007).
[10] Dora, 18 Cal. Rptr. 2d at 790.
[11] Compare Id. (holding the term 'public affairs' is not limited to
politics or public policy, because that would jeopardize society's
right to know, since broadcasters could be sued for use of name and
likeness on subjects that “do not relate to politics or public policy,
and may not even be important, but are of interest”), and Gionfriddo,
114 Cal. Rptr. 2d at 318 (holding that Baseball is the national
pastime; therefore, baseball league's uses of retired baseball players'
likenesses on Web sites, documentaries, and game day programs were
public affairs uses exempt from consent under right of publicity
statute).
[12] Dora, 18 Cal. Rptr. 2d at 792.
[13] Comedy, 21 P.3d at 809.
[14] Id.
[15] Id. (holding that the reproductions of images of The Three Stooges on
t-shirts were not sufficiently transformed because the overall goal was
to create literal depictions of The Three Stooges to exploit their
fame); Winter v. DC Comics, 121 Cal. Rptr. 2d 431, 441 (Cal. Ct. App.
2d Dist. 2002) (holding the use of Winters' identities and stage
personae's in comic books where not sufficiently transformative when
there is no new meaning attributed to their musical talent, or their
works or performances).
[16] Comedy, 21 P.3d at 809.
Recent Comments