About a year ago I blogged about a pending lawsuit against Hallmark Cards courtesy of Paris Hilton citing a right of publicity/trademark claim over the Hallmark card pictured above. At the time I thought that is was going to be a slam dunk for Hilton, but then I was not so sure.

In a stunning demonstration of the swift wheels of justice in the United States courts, a federal court of appeals decided Monday that Hilton can go ahead and pursue her lawsuit (link courtesy of The Daily Cartoonist). Wow, that only took a year.

Actually there had been action on the case in the intervening year. A lower court had thrown out Hilton’s assertion (actually her law team’s assertion, I don’t think Paris could assert anything farther than demanding more vodka in her cosmopolitan at the club) that the card infringed on a “trademark”… meaning her “That’s Hot” catchphrase. However they did not accept some of Hallmark’s other defenses. Hilton appealed to the U.S. 9th Circuit, who said she had other grounds for continuing the case.

Specifically the 9th Circuit Court decided that Hilton had a chance of winning her case based on the argument that the image was not sufficiently “transformation”, and that Hallmark could not use a “public interest” defense because the card did not publish or report any information like in a news story or report. The case now goes back to a lower court with these issues being considered.

I am not surprised the trademark infringement case got rejected in the first suit. A trademark is different than a copyright or the right of publicity. The US Patent and Trademark Office defines a “trademark” as “including any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.” It’s a stretch for Hilton to claim “That’s HOT” as a trademark.

Much more likely to prevail is a right of publicity claim. It’s clearly Paris Hilton in this card, as it a photo of her and they use her NAME. The cartoon body isn’t really “transformative” as it’s representational not only of her as a celebrity of even as her persona from the TV show “The Simple Life” i.e. the rich heiress doing the menial labor job. So where is the “transformative” part?

A clear precedent for this kind of thing was decided by the California Supreme Court in Comedy III Productions, Inc. v. Gary Saderup, Inc. (25 Cal. 4th 387, 21 P.3d 797 (2001)). This case was about an artist who drew a portrait of the Three Stooges and sold it on t-shirts, as lithos, etc. He was sued by the Stooges estate’s representatives. The defendant argued that the work was an original work of art and protected under the First Amendment. In weighing the rights of the celebrity against the rights of the artist, the courts asked itself how much of the work was really about the artist’s talent and skill, and how much was about the fact that it depicted the Three Stooges.

The court wrote, in part:

“We ask, in other words, whether a product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness. And when we use the word ‘expression,’ we mean expression of something other than the likeness of the celebrity.”

They went on to say:

“Furthermore, in determining whether a work is sufficiently transformative, courts may find useful a subsidiary inquiry, particularly in close cases: does the marketability and economic value of the challenged work derive primarily from the fame of the celebrity depicted? If this question is answered in the negative, then there would generally be no actionable right of publicity. When the value of the work comes principally from some source other than the fame of the celebrity – from the creativity, skill, and reputation of the artist – it may be presumed that sufficient transformative elements are present to warrant First Amendment protection.”

A case that went against the celebrity using the same arguments was TW Corporation v. Jireh Publishing, Inc. (99 F.Supp.2d 829 N.D.Ohio, 2000). In this case, Tiger Woods sued the publisher of a print of a painting depicting Woods and other images called “Masters of Augusta” that was commemorating his victory in the 1997 Master’s. The courts found that selling the limited edition art prints of Woods at the Masters did not violate his ROP as the work contained “significant transformative elements” and did not sell solely on the identity of Woods, since it contained many images of other golfers, the August clubhouse and other elements from the tournament.

I don’t see Hallmark winning this one. It may be poking fun at Hilton but the card clearly appeals to buyers because of her depiction and her catchphrase… meaning it’s value is derived mainly from her fame.

We’ll know for sure in a few years or so.

This week’s subject is a fellow caricaturist and ISCA member Rocky Sawyer who’s caricature I did for the International Society of Caricature Artists “Firing Squad”. The “Firing Squad” is a forum on the ISCA Message Board where members post pictures of themselves and then they are drawn by other members. A fun idea and it results in lots of caricatures in many different styles. I don’t get much time to participate but Rocky’s wife e-mailed me asking if I’d take a shot at her husband as it was his birthday, so I thought it would make an interesting sketch o’the week. The reference pic is only one of several that were sent to me.

This series of “How to Draw Caricatures” tutorials are a just a small taste of a larger and much more in-depth book I wrote called The Mad Art of Caricature! The book is 175 full-color pages, lavishly illustrated and contains greatly expanded explanations of the concepts presented in these tutorials, as well and a great deal of additional material on caricaturing other facial features, posture, hands, expression and more, techniques on drawing from live models, doing caricature for freeplace illustration and for MAD Magazine. This is a must have book for anyone interested in caricature, cartooning or humorous illustration. You can order it online here.

Part Five: Drawing Noses

In this next (and long delayed) installment of my “How to Draw Caricatures” series of tutorials we will examine the ever popular and often abused nose.

I think the most common feature that gets exaggerated in a caricature is the nose. Many people actually think the definition of caricature is a drawing with a big nose. What is it about the nose that makes it such a ripe target for exaggeration, so often picked on (pardon the pun) that even the layman notices? Simply put, the nose is the most obnoxious of features. It sits in the very center of the face. It is a very vertical feature when compared to the horizontal nature of the eyes and mouth. It sticks out radically from the plane of the face, much more in relief than any of the other features. It’s so prominent that it’s all too often used as a de-facto way to “exaggerate” the face. The fact is that the nose is like any other feature… its perceived relationship with the other features determines the extent and direction of the exaggeration. Many people have small, button noses that need to be made smaller by way of exaggeration. In some cases the end of the nose may rest close in between the eyes, and in others it’s very far way down the face. Some people have big, honking schnozzes that need to be stretched. In short, despite its prominence the nose is no different that the other features… it must be exaggerated and drawn in the manner the feature itself calls for.

The Anatomy of a Nose

The nose is a combination of bone and cartilage made up of various parts that while unique in appearance and relationship in the individual nonetheless, as in any feature, are the same in all people. Starting from the top, the area between the eyebrows is called the glabella. The area directly between the eyes is the root or bridge. The area extending from the root down towards the end of the nose is called the lateral surfaces. The end or “ball” of the nose is called the apex. The two “wings” of the nose, the areas that define the outside of the bottom of the nose and the outside of the nostrils are called the ala. The septum is the area that connects the apex to the face and separates the two nostrils, which are the cavities that open into the interior of the nose and the nasal passages. The alar furrow is the crease made by the separation of the ala and the cheek muscles. The nose “grows” out of the brow, and is connected at the top of the feature by the brow ridge and at the bottom, to the lips/mouth by the philtrum and the nasolabial furrow. The upper part of the nose, including the brow, glabella and root is bone… the “root” or bridge protrudes from the brow of the skull and then ends about 1/4 to 1/3 of the way down the nose itself. After that the nose is all cartilage and soft tissue. Because cartilage continues to grow throughout your life, your nose continues to grow and will alter shape as you age (ears are the same way). That is why many older people have larger noses, and why drawing a larger nose on someone makes them look older in the drawing.

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