‘That’s Hot!’ Paris Hilton Wins ‘Hallmark’ Decision at Ninth Circuit

[WSJ_law_blog]

LBers, not only can you rely on us to deliver the legal news, but we can also dish out the celebrity news like the best of ‘em.

Like this: Did you know that Paris Hilton recently abandoned her trademark exclamation “That’s Hot!” for “That’s Huge!” We can barely believe it either, but it’s like totally true! Watch it here if you don’t believe us.

We’re of half a mind to end this post right now, but, alas, there’s a legal hook to this all-too-important Paris Hilton news which, in our minds, gives new meaning to the phrase “intellectual property”: The Ninth Circuit earlier today made a ruling in a lawsuit concerning Hilton’s use of the phrase “That’s Hot!” A three-judge panel ruled that Hilton could proceed with her lawsuit against greeting-card maker Hallmark in which she alleges Hallmark misappropriated her picture as well as her use of the “That’s Hot!” saying. Click here for the Reuters story, here for the opinion, written by judge Diarmuid O’Scannlain.

Before Hilton made her big switch to “That’s Huge!,” she reportedly used to say “That’s Hot!” all the time on her show The Simple Life. In at least one episode of the show, Hilton worked at a Sonic fast-food restaurant and, yes, made that very quip. The Hallmark card at issue, according to the Reuters story, showed:

Hilton’s face superimposed on a cartoon of a waitress serving a plate of food to a restaurant customer.

Hilton tells the customer, “Don’t touch that, it’s hot.” The customer asks, “What’s hot?” Hilton responds, “That’s hot.” The inside of the card reads “Have a smokin’ hot birthday.”

We have no idea how much Hallmark made on this, uh, incredibly clever card, but it’ll now have to defend itself at trial. The Ninth Circuit upheld the lower court’s denial of Hallmark’s motion to dismiss Hilton’s right-of-publicity claim, ruling that the card was not sufficiently “transformative” as to deserve automatic protection simply because the setting was different and the phrase “that’s hot” referred to the temperature of a plate of food.

Wrote O’Scannlain: “the basic setting is the same: we see Paris Hilton, born to privilege, working as a waitress.” He concluded that Hilton “has at least some probability of prevailing on the merits before a trier of fact” and kicked the suit back to the lower court.

Lincoln Bandlow, a lawyer at Lathrop & Gage in Los Angeles representing Hallmark, told Reuters that “the analysis of the First Amendment defense is incorrect. It will leave a lot of speakers subjected to meritless right of publicity claims.”

Brent Blakely, a lawyer for Hilton, was not available for comment. But his Web site is unlike any law-firm site we’ve seen, featuring shots of surfers, a bullfighter and, yes, a bikini-clad woman.