(CN) – Lawyers for Hallmark Cards Inc. asked the full 9th Circuit to rehear a decision last month allowing Paris Hilton to move forward with a publicity-rights claim over the use of her image and catchphrase, “that’s hot,” in a birthday card.
In a petition for rehearing filed Friday, Hallmark argued that the card qualifies for First Amendment protection as a spoof on the hotel heiress and her trademarked phrase.
The card shows a cartoon waitress transposed with a photo of Hilton’s head. The cartoon Hilton tells a customer, “Don’t touch that, it’s hot?” The customer replies, “What’s hot?” and Hilton responds, “That’s hot.” The caption below the scene reads, “Paris’s First Day as a Waitress.”
Hilton accused Hallmark of lifting the concept from her reality TV show, “The Simple Life,” in which she and friend Nicole Ritchie, who had a similarly privileged upbringing, do things an average person might do, such as work at a fast-food restaurant.
A three-judge panel of the 9th Circuit refused to dismiss the case in late August, saying Hilton “has at least some probability of prevailing on the merits” at trial.
Hallmark attorney Lincoln Bandlow of Lathrop & Gage said the ruling departs with precedent by “incorrectly limiting and failing to properly apply” the transformative use test.
“The Opinion’s conclusion is also contrary to well-established law under which parodies and spoofs of other works are regularly deemed transformative and protected by the First Amendment,” Bandlow wrote.
He quoted Chief Judge Kozinski’s concern about courts giving celebrities a “right to keep people from mocking them or their work.”
“The Opinion does exactly that,” Bandlow said, “in direct conflict with numerous decisions by this Court and others, and to the detriment of the fundamental right of free speech.”