Celebrities have recently won a clean sweep in three high-profile lawsuits, with particularly controversial decisions favoring Vogue model Liskula Cohen in a landmark cyberbullying case and Paris Hilton in a publicity rights case.

Liskula Cohen	Rosemary Port

Cohen's case implicates the difficult balance between free speech on the Internet and defamation. She sued Google to compel disclosure of the identity of an anonymous blogger who described her as a “skank” and a “ho” in a blog post entitled “Skanks of NYC.”

An attorney for the blogger argued that the statements in the post, which appeared as captions to provocative photographs of Cohen, were “non-actionable opinion and/or hyperbole” and that blogs are a “protected forum for voicing gripes, leveling invective, and ranting about anything at all.”

But last month, Manhattan Supreme Court Justice Joan A. Madden granted Cohen's petition, finding that, in the context of photo captions, “the words 'skank,' 'skanky' and 'ho' carry a negative implication of sexual promiscuity, and as such are reasonably susceptible of a defamatory connotation.”

She also agreed in her ruling with a Virginia court which said those injured by “actionable communications on the Internet should be able to seek appropriate redress by preventing the wrongdoers from hiding behind an illusory shield of purported First Amendment rights.”

Google duly complied with the ruling and identified the blogger as Rosemary Port, an acquaintance of Cohen who was apparently upset that the model talked trash about her to her boyfriend.

Madden's finding of a defamatory connotation is shaky to say the least. A California court has held that “[t]he phrase 'big skank' is not actionable because it is too vague to be capable of being proven true or false” and it's not clear why Port's use of the term in a photo caption makes it defamatory when the photos are a true depiction of Cohen.

What's also troubling about the case is that after Google outed Port, Cohen announced she would not be proceeding with a libel suit against her. This means, in effect, that she used the courts as her personal private investigator.

“I think the practical impact is that litigious people will see this as a green light to try to out critics,” said Matt Zimmerman, senior staff attorney at the Electronic Frontier Foundation. “It's one of those 'bad facts make bad law' cases.”

In Paris Hilton's publicity rights case, the 9th U.S. Circuit Court of Appeals ruled Aug. 31 that the hotel heiress and publicity magnet could sue Hallmark Cards for misappropriating her image in a greeting card which depicted her as a waitress.

Works that comment on or parody a celebrity are protected expression under the California Supreme Court's “transformative use” defense. The 9th Circuit found the Hallmark card was “just a spoof” of a scene from the reality TV show “The Simple Life” in which Hilton works as a waitress --- completely missing the point that the spoof is an expressive use of her image.

“[T]he Card specifically comments on Hilton (by portraying her in an environment that is diametrically opposite of her regular glitzy lifestyle) and pokes fun at her oft-repeated phrase 'that’s hot,'” Hallmark said in its appellate brief.

The court's analysis of Hallmark's “public interest” defense was also remarkably shallow. That defense, it said, does not apply because the card “does not publish or report information,” citing a California case involving Clint Eastwood which held that

The scope of the [First Amendment] privilege extends to almost all reporting of recent events even though it involves the publication of a purely private person’s name or likeness.

But the court in Eastwood v. Superior Court, 149 Cal. App. 3d 409 (1983), went on to say that “a public interest ... attaches to people who, by their accomplishments, mode of living, professional standing or calling, create a legitimate and widespread attention to their activities.”

It simply doesn't matter that Hallmark wasn't strictly “reporting information” about Hilton since -- largely as a result of her own relentless quest for notoriety -- she has become someone “the public is interested in and constitutionally entitled to know about.”

Somewhat less controversially, a New York judge last week dismissed a copyright infringement suit against Jerry Seinfeld's wife which alleged her “Deceptively Delicious” collection of pureed fruit and vegetable recipes was a rip-off of Missy Chase Lapine's cookbook “The Sneaky Chef.”

Copyright law applies only to the literary expression of a recipe, not the recipe itself, and U.S. District Judge Laura Taylor Swain concluded that Lapine's

description of the allegedly protected expression –- “giving instructions for making vegetable purees in advance, storing them for future use, and then using them in specially created recipes which include the pre-made purees as ingredients” -- is so abstract as clearly to fall into the category of unprotectible process or idea. It remains nothing more than the very idea that Plaintiffs recognized as unprotectible: hiding vegetables in foods children enjoy.

By Matthew Heller
9/16/09