Right of Publicity Claims by Paris Hilton Not Subject to Anti-SLAPP Motion to Strike

Case: Hilton v. Hallmark, 9th Cir. No. 0855443p (Aug. 31, 2009)

The One Sentence Summary: Anti-SLAPP motion properly denied where celebrity plaintiff could prevail on common law right of publicity claims.


What They Were Fighting About: Hallmark published a card showing Paris Hilton as a waitress saying "That's Hot," her trademarked phrase. The district court denied Hallmark Cards' motion to dismiss Lanham Act and right of publicity claims and Hallmarks' motion to strike under California's Anti-SLAPP (Strategic Lawsuit Against Public Participation) law, Cal. Code Civ. Proc. § 425.16.

Ninth Circuit Holdings:

• Court had appellate jurisdiction over denial of SLAPP motion.
• The denial of the motion to dismiss Lanham Act claim was not intertwined with SLAPP motion, and not separately appealable.
• The denial of a motion to dismiss a right of publicity claim was not appealable as "inextricably intertwined" with denial of anti-SLAPP motion.
• Loose standard on "furtherance" of free speech for SLAPP.
• The card was speech.
• The card was not "commercial speech" in First Amendment SLAPP analysis because it did not simply propose a commercial transaction.
• Statements about celebrity were of public interest under SLAPP statute.
• Hilton can establish common law elements of right of publicity claim.
• Transformative use defense raised by Hallmark raised factual questions as to whether plaintiff or defendant would prevail.
• No public interest defense because card did not report information.
• Because Hallmark was not entitled to win right of publicity claims as a matter of law, SLAPP motion was properly denied.