ORDER
The opinion filed in this case on August 31, 2009, and reported at
The petition for rehearing and the petition for rehearing en banc are DENIED. No subsequent petitions for rehearing and rehearing en banc may be filed.
OPINION
We must decide whether California law allows a celebrity to sue a greeting card company for using her image and catchphrase in a birthday card without her permission.
I
Paris Hilton is a controversial celebrity known for her lifestyle as a flamboyant heiress. As the saying goes, she is “famous for being famous.”
She is also famous for starring in “The Simple Life,” a so-called reality television program. The show places her and fellow heiress Nicole Ritchie in situations for which, the audience is to assume, their privileged upbringings have not prepared them. For example, work. In an episode called “Sonic Burger Shenanigans,” Hilton is employed as a waitress in a “fast food joint.” As in most episodes, Hilton says, “that’s hot,” whenever she finds something interesting or amusing. She has registered the phrase as a trademark with the United States Patent & Trademark Office.
Hallmark Cards is a major national purveyor of greeting cards for various occasions. This case is about one of its birthday cards. The front cover of the card contains a picture above a caption that reads, “Paris’s First Day as a Waitress.” The picture depicts a cartoon waitress, complete with apron, serving a plate of food to a restaurant patron. An oversized photograph of Hilton’s head is super-imposed on the cartoon waitress’s body. Hilton says to the customer, “Don’t touch that, it’s hot.” The customer asks, “what’s hot?” Hilton replies, “That’s hot.” The inside of the card reads, “Have a smokin’ hot birthday.”
Hilton sued Hallmark, asserting three causes of action. The First Amended Complaint alleges misappropriation of publicity under California common law; false designation under the Lanham Act, 15 U.S.C. § 1125(a); and infringement of a federally registered trademark. Hallmark filed a motion to dismiss each claim under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief could be granted. The district court granted one portion of the motion to dismiss: the trademark infringement claim, a judgment from which Hilton does not appeal. By separate motion, Hallmark moved specially to strike Hilton’s right of publicity claim under California’s antiSLAPP statute. 1 In both motions, Hall *900 mark raised defenses peculiar to each cause of action, some based on the First Amendment to the United States Constitution and some not.
The district court denied the remaining portions of the motions to dismiss and denied the special motion to strike the anti-SLAPP claim. It concluded that the defenses required a more fact-intensive inquiry than is permissible at such stage of the case. Hallmark timely appeals.
II
Before discussing the merits of this appeal, we must assure ourselves that we have jurisdiction over the appeal of denials of both motions.
A
As to the special motion to strike, appellate courts generally have jurisdiction only over final judgments and orders. 28 U.S.C. § 1291;
Digital Equip. Corp. v. Desktop Direct, Inc.,
B
Denials of motions to dismiss under Rule 12(b)(6) are ordinarily not appeal-able, even as collateral orders.
See Catlin v. United States,
1
We first address whether we have jurisdiction over the denial of the motion to dismiss the Lanham Act claim as an order inextricably intertwined with the antiSLAPP motion.
Hallmark argues that the defenses it raises to Hilton’s Lanham Act claim are based on some of the same First Amendment concerns that animate its potential defenses to the misappropriation of public
*901
ity claim. That may be, but Hallmark only moved to strike the misappropriation of publicity claim. Indeed, it could not have moved to strike the Lanham Act claim because, as the parties agree, the antiSLAPP statute does not apply to federal law causes of action.
See Bulletin Displays, LLC v. Regency Outdoor Adver., Inc.,
Because a federal court can only entertain anti-SLAPP special motions to strike in connection with state law claims, there is no properly appealable order with which the Lanham Act claim could be inextricably intertwined. We therefore lack jurisdiction to review it.
2
What about the denial of the portions of Hallmark’s motion to dismiss pertaining to the misappropriation of publicity claim, the same claim that was the target of the antiSLAPP motion?
It is clear that not every motion to dismiss the same claim that underlies an anti-SLAPP motion is “inextricably intertwined” with such motion. We have held, for example, that a motion to dismiss for lack of personal jurisdiction
3
is not inextricably intertwined with an anti-SLAPP motion.
Batzel,
The first type of inextricably intertwined order is one that “we must [review] ... in order to review the claims properly raised on interlocutory appeal.”
Batzel,
An order may also be inextricably intertwined with an immediately appeal-able one if “resolution of the issue properly raised on interlocutory appeal necessarily resolves the pendent issue.” Id. (internal quotation marks omitted). To determine whether a motion to dismiss (the pendent issue) is inextricably intertwined with an anti-SLAPP motion to strike (the issue properly raised) in this sense, we must briefly consider the inquiry associated with an anti-SLAPP motion.
As we discuss infra, an antiSLAPP motion requires the court to ask, first, whether the suit arises from the defendant’s protected conduct and, second, *902 whether the plaintiff has shown a probability of success on the merits. If the first question is answered in the negative, then the motion must fail, even if the plaintiff stated no cognizable claim. Of course, if a plaintiff stated no cognizable claim, then the defendant would be entitled to dismissal under Rule 12(b)(6). Thus, a Rule 12(b)(6) motion to dismiss may succeed where an anti-SLAPP motion to strike would not.
The converse is also true. The second stage of the anti-SLAPP inquiry determines whether “the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”
Integrated Healthcare Holdings, Inc. v. Fitzgibbons,
The foregoing illustrates that neither the denial nor the grant of an antiSLAPP motion “necessarily resolves,”
Batzel,
Ill
Having weeded out of this appeal matters over which we lack jurisdiction, we now address the merits of denial of Hallmark’s special motion to strike the antiSLAPP claim.
A
California, like some other states, has a statute designed to discourage “strategic lawsuits against public participation.” SLAPPs “masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so.”
Batzel,
Under the statute,
[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probabili *903 ty that the plaintiff will prevail on the claim.
Id. § 425.16(b)(1). The phrase “act ... in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” is defined by four specific categories of communications. Id. § 425.16(e)(l)-(4). 5 The relevant one here is the fourth, catch-all category: “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” Id. § 425.16(e)(4).
California courts evaluate a defendant’s anti-SLAPP motion in two steps. First, the defendant moving to strike must make “a threshold showing ... that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant’s] right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in [subsection (e) of] the statute.”
Equilon Enters., LLC v. Consumer Cause, Inc.,
1
For Hallmark’s anti-SLAPP motion to succeed, it must make its “threshold showing” at step one: “that the act or acts of which the plaintiff complains were taken in furtherance of the [defendant’s] right of petition or free speech under the United States or California Constitution in connection with a public issue [or an issue of public interest].”
Equilon Enters., LLC,
a
First, the activity the plaintiff is challenging must have been conducted “in furtherance” of the exercise of free speech rights. By its terms, this language includes not merely actual exercises of free speech rights but also conduct that furthers such rights. Cal.Civ.Proc.Code § 425.16(e)(4);
see also Navellier,
The California Supreme Court has not drawn the outer limits of activity that fur
*904
thers the exercise of free speech rights. It seems to suffice, however, that the defendant’s activity is communicative,
cf. Commonwealth Energy Corp. v. Investor Data Exch., Inc.,
One sensible place to start is to determine whether the activity in question is “speech” under First Amendment law. Here, Hallmark’s card certainly evinces “[a]n intent to convey a particularized message ..., and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.”
6
Spence v. Washington,
Thus, Hallmark’s card qualifies as speech and falls comfortably within the universe of types of communication that California courts have considered “conduct in furtherance of’ the exercise of free speech rights upon which to base antiSLAPP motions to strike.
b
Next, Hallmark must show that the sale of its card was “in connection with *905 a public issue or an issue of public interest.” Cal.Civ.Proc.Code § 425.16(e)(4). Hilton contends that the card merely appropriates the waitress role she played on “The Simple Life.” She therefore views this lawsuit as a garden variety private dispute over who profits from her image. According to Hilton, the card implicates no issue of public interest because it involves no issue at all, only a celebrity who interests many people. 7
i
Sitting in diversity, we must begin with the pronouncements of the state’s highest court, which bind us.
See Ariz. Elec. Power Coop., Inc. v. Berkeley,
Second, the California Supreme Court has “declined to hold that [the antiSLAPP statute] does not apply to events that transpire between private individuals.” Id. at 710 (internal quotation marks omitted). That neither Hilton nor Hallmark are public officials, therefore, cannot be dispositive. Furthermore, the court has “explicitly rejected the assertion that the only activities qualifying for statutory protection are those which meet the lofty standard of pertaining to the heart of self-government.” Id. (internal quotation marks omitted). Thus, the activity of the defendant need not involve questions of civic concern; social or even low-brow topics may suffice.
The question before us is whether the topic, the issue, can be a celebrity like Paris Hilton, or whether, as Hilton argues, it must be the subject of some defined debate.
*906
In interpreting the anti-SLAPP statute, the California Supreme Court has insisted on its language, including its preamble.
See Equilon Enters.,
That preamble declares it to be “in the public interest” of the state of California “to encourage continued participation in matters of public significance .... To this end, this section shall be construed broadly.” Cal.Civ.Proc.Code § 425.16(a). The California Supreme Court has defined “significance” to mean “importance” or “consequence.”
Briggs,
Understood this way, the statute does not appear to favor a construction limiting the meaning of “issue” to a subject of a specific debate. However, we need not rest on the implications of the California Supreme Court and the statute, which do not definitively answer the question, “because we have guidance from the [California] Court of Appeals.”
Batlan v. Bledsoe (In re Bledsoe),
ii
The California intermediate appellate courts have developed multiple tests to determine whether a defendant’s activity is in connection with a public issue. One commonly cited test comes from
Rivero v. American Federation of State, County, & Municipal Employees,
By contrast,
Weinberg v. Feisel,
a case from the Third District, articulated a somewhat more restrictive test, designed to distinguish between issues of “public, rather than merely private, interest.”
First, “public interest” does not equate with mere curiosity. Second, a matter of public interest should be something of concern to a substantial number of people. Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public inter *907 est. Third, there should be some degree of closeness between the challenged statements and the asserted public interest; the assertion of a broad and amorphous public interest is not sufficient. Fourth, the focus of the speaker’s conduct should be the public interest rather than a mere effort to gather ammunition for another round of private controversy. Finally, ... [a] person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people.
Id. at 392-93 (internal quotation marks, citations, and alteration omitted).
iii
Although these approaches do not precisely overlap, we need not decide between them, because Hallmark’s birthday card satisfies both tests.
Hallmark’s card falls into either the first or third categories that
Rivero
outlined: statements “concerning] a person or entity in the public eye”; “or a topic of widespread, public interest,”
Although the application of the Weinberg test presents a closer call, we conclude it comes to the same result. 9 Again, there is no dispute that Paris Hilton’s career is “something of concern to a substantial number of people,” Weinberg, 2 Cal.Rptr.3d at 392. The connection “between the challenged statements” — the birthday card — “and the asserted public interest”— Hilton’s life, image, and catchphrase — is direct. Id. After all, the card concerns Hilton’s persona. There was no pre-existing controversy between Hallmark and Hilton, so the fourth and fifth considerations that the Weinberg court considered are inapposite. See id. at 392-93.
Weinberg
does caution, however, that “ ‘public interest’ does not equate with mere curiosity.”
Id.
at 392 (citing
Time, Inc. v. Firestone,
This limitation does not apply here, however. Hallmark’s card does not concern some personal detail of Hilton’s life (such as a divorce), it concerns her trademark phrase and her public persona — the very things that interest people about her. Thus, Weinberg, too, supports Hallmark’s position that its card deals with a public issue.
Du Charme v. International Brotherhood of Electrical Workers,
in order to satisfy the public issue/issue of public interest requirement of ... subdivision (e)(3) and (4) of the antiSLAPP statute, in cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion. ...
Id. at 510 (emphasis added).
Subsequent California appellate courts have honored this clear limitation of
Du Charme. See, e.g., Fitzgibbons,
In short, all of the various approaches that California’s appellate courts have used to define “public issue or an issue of interest to the public” appear to support the conclusion that Hallmark’s birthday card is indeed in connection with such an issue. That the card is a commercial product and Hilton’s lawsuit a dispute over who can profit from her image does not defeat Hallmark’s ability to make its threshold showing. We therefore conclude that Hallmark has shown that Hilton’s suit for misappropriation of publicity arises from “conduct in furtherance of the exercise of the constitutional right of ... free speech in connection with a public issue or an issue of public interest.” Cal.Civ.Proc. Code § 425.16(a), (e)(4).
B
Hallmark, however, has only passed the threshold. “[T]he statute does not bar a plaintiff from litigating an action that arises out of the defendant’s free speech or petitioning; it subjects to potential dismissal only those actions in which the plaintiff cannot state and substantiate a legally sufficient claim.”
Navellier,
Hilton’s claim is for misappropriation of the common law right of publicity.
See generally Eastwood v. Superior Court,
1
Under California law, “when an artist is faced with a right of publicity challenge to his or her work, he or she may raise as [an] affirmative defense that the work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity’s fame.”
Comedy III Prods., Inc. v. Gary Saderup, Inc.,
The application of the defense, which the California Supreme Court based loosely on the intersection of the First Amendment and copyright liability,
12
depends upon “whether the celebrity likeness is one of the ‘raw materials’ from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question.”
Comedy III,
a
The potential reach of the transformative use defense is broad. The form of the expression to which it applies “[is] not confined to parody and can take many forms,” including “fictionalized portrayal ... heavy-handed lampooning ... [and] subtle social criticism.”
Id.
at 809 (citations omitted). Nor should courts “be
*910
concerned with the quality of the artistic contribution — vulgar forms of expression fully qualify for First Amendment protection.”
Id.
It is thus irrelevant whether Hallmark’s card qualifies as parody
13
or high-brow art. Nor does it matter that Hallmark sought to profit from the card; the only question is whether the card is transformative.
Cf. Winter,
We think it clear that Hallmark may raise the transformative use defense. The applicability of the defense, however, does not preclude Hilton from showing the “minimal merit” needed to defeat Hallmark’s motion to strike.
14
Only if Hallmark is entitled to the defense
as a matter of law
can it prevail on its motion to strike. In this context, we note that
Comedy III
envisioned the application of the defense as a question of fact.
See
b
Case law provides several useful data points for such inquiry. In
Comedy III,
the California Supreme Court held that “literal, conventional depictions of the Three Stooges,” drawn in charcoal and sold on t-shirts, make “no significant trans-formative or creative contribution.”
Winter
furnishes a counter example. There, the California Supreme Court held that the publisher of a comic book was entitled to summary judgment on the grounds of the transformative use defense. The cover of the comic book showed cartoon figures based on two musicians (Johnny and Edgar Winter) that were “distorted for purposes of lampoon, parody, or caricature” and drawn as “half-human and half worm [characters] in a larger story.”
Falling somewhere in between these two ends of the spectrum is
Kirby,
in which the California Court of Appeal granted sum
*911
mary judgment to a video-game distributor on the transformative use defense. Although the video-game character in question, “Ulala,” was certainly “reminiscent” of the singer Kirby (aka “Lady Miss Kier”) in terms of facial features, personal style, and catchphrases, the court noted that there were significant differences in their physiques, typical hairstyles and costumes, and dance moves.
c
Hilton’s basic contention is that Hallmark lifted the entire scene on the card from the “Simple Life” episode, “Sonic Burger Shenanigans.” The conceit behind the program was to place Hilton and her friend Nicole Ritchie into the life of an average person, including working for a living. In the episode, the women work at a drive-through fast-food restaurant. They cruise up to customers’ cars on roller skates and serve them their orders. True to form, Hilton occasionally remarks that a person, thing, or event is “hot.”
Hallmark’s card, Hilton claims, is a ripoff of this episode. Hallmark maintains that its card is transformative because the setting is different and the phrase, “that’s hot,” has become a literal warning about the temperature of a plate food.
To be sure, there are some differences between the waitressing Hilton does in the “Simple Life” episode and the portrayal in Hallmark’s card. Hilton’s uniform is different, the style of the restaurant is different (drive-through service rather than sit-down service), and the food is different (burgers-and-fries rather than diner-style bacon and eggs). In the card, the body underneath Hilton’s over-sized head is a cartoon drawing of a generic female body rather than a picture of Hilton’s real body. Finally, Hilton’s catchphrase appears consistently in its familiar, idiomatic meaning. Despite these differences, however, the basic setting is the same: we see Paris Hilton, born to privilege, working as a waitress.
When we compare Hallmark’s card to the video game in Kirby, which transported a 1990s singer (catchphrases and all) into the 25th century and transmogrified her into a space-age reporter, we conclude that the card falls far short of the level of new expression added in the video game. While a work need not be phantasmagoric as in Winter or fanciful as in Kirby in order to be transformative, there is enough doubt as to whether Hallmark’s card is transformative under our case law that we cannot say Hallmark is entitled to the defense as a matter of law.
d
Hoffman v. Capital Cities/ABC, Inc.,
Our case is distinguishable from Hoffman. Although both Hoffman and Hilton *912 pursued misappropriation of publicity claims against their respective defendants for placing a photograph of their heads on a different body, the defendants in each ease asserted different defenses and, therefore, attempted to establish different facts. The defendant in Hoffman did not assert an affirmative defense of transformative use, but simply a more general First Amendment defense. To defeat that defense, Hoffman attempted to establish that the defendant acted with “actual malice” and therefore was not entitled to First Amendment protections. Here, however, Hallmark asserts an affirmative defense of transformative use against Hilton’s right of publicity claim, thus bringing the work under First Amendment protections. Furthermore, to the extent that Hoffman discussed the transformative use defense, the passing footnote was dictum and not central to the ultimate holding in the case. 15 We therefore reject Hallmark’s argument that it is entitled to the transformative use defense as a matter of law.
2
We turn to Hallmark’s last redoubt: the “public interest” defense.
Under California law, “no cause of action will lie for the publication of matters in the public interest, which rests on the right of the public to know and the freedom of the press to tell it.”
Montana v. San Jose Mercury News, Inc.,
This defense does not help Hallmark, however, because, by its terms, it only precludes liability for “the publication of matters in the public interest.”
Montana,
We must conclude that Hallmark cannot employ the “public interest” defense because its birthday card does not publish or report information.
IV
For the foregoing reasons, we AFFIRM the denial of Hallmark’s motion to strike pursuant to California’s anti-SLAPP statute, but DISMISS the appeal of the denial *913 of Hallmark’s motion to dismiss the misappropriation of publicity claim and the Lanham Act claim for lack of appellate jurisdiction. We REMAND for further proceedings consistent with this opinion. The parties shall bear their own costs on appeal.
Notes
. "SLAPP” stands for "strategic lawsuit against public participation.” As we discuss further infra, so-called "anti-SLAPP” laws are designed to bar meritless lawsuits filed merely to chill someone from exercising his First Amendment rights on a matter of public interest. California's version is codified at California Civil Procedure Code § 425.16. The relevant text is set out on p. 902-03 infra.
. Applying the familiar framework of
Erie R.R. Co. v. Tompkins,
. Such motions are typically made pursuant to Federal Rule of Civil Procedure 12(b)(2).
. The closest thing to an application of the “inextricably intertwined” doctrine we decided involved a motion for reconsideration of the denial of the motion to strike or to dismiss.
Zamani,
. Although subsection (e) uses the word “includes,” its four categories exhaust the meaning of an act in furtherance of free speech or petitioning rights.
Navellier v. Sletten, 29
Cal.4th 82,
. We do recognize a wrinkle in this situation. Namely, Hallmark itself does not intend to convey a message; rather, it sells a stylized, ready-made message to someone else, who conveys it to the recipient of the card. In other words, when you open a birthday card, Hallmark has not wished you a happy birthday. It has simply provided the medium for its customer to do so. Hilton might have argued that this means Hallmark cannot assert a statutory defense derived from the First Amendment because its First Amendment rights are not at issue. But she did not make any such argument. The closest she came was her contention that the speech at issue is commercial speech. We reject such contention infra, at 905 n.7.
We do not, therefore, reach this issue. Although it sounds like a question of standing, which is often jurisdictional, it bears closest resemblance to the rule against third party standing: a party normally cannot raise claims that belong to a third party.
See Massey v. Helman,
. Hilton also argues that the birthday card is commercial speech and that such speech cannot, as a matter of law, raise a public issue under the anti-SLAPP statute.
See Scott v. Metabolife Int’l, Inc.,
Regardless of whether the major premise is true, the minor one is false: Hallmark's card is not commercial speech. "[T]he 'core notion of commercial speech' is that it 'does no more than propose a commercial transaction.' ”
Hoffman v. Capital Cities/ABC, Inc.,
. In her papers before the district court, Hilton recognized that she is a “public figure and a subject of public interest,” with "widespread public recognition.”
. One might read Weinberg, a defamation case, as having articulated a test particular to the defamation cause of action. Because our application of Weinberg is not decisive here, we do not reach this question, which neither of the parties raised.
.On this point
Weinberg
appears to conflict with
Nygard, Inc. v. Uusi-Kerttula,
which concluded that " 'an issue of public interest’ ... is
any issue in which the public is interested."
. We take no position on whether there is a First Amendment defense to misappropriation of the right of publicity that is distinct from the defense the California Supreme Court has articulated. We address only defenses that Hallmark raised, and leave for another day the question of whether the First Amendment furnishes a defense to misappropriation of publicity that is broader than the transformative use or public interest defenses.
. The cousinage between copyright liability and the right to publicity has long been recognized.
See, e.g., Zacchini v. Scripps-Howard Broad. Co.,
. To be sure, the transformative use defense has its origins in copyright law, which recognizes that "parody has an obvious claim to transformative value” and can therefore constitute fair use.
Campbell v. Acuff-Rose Music, Inc.,
. Thus, we conceptualize the inquiry into two parts: whether the transformative use defense is available at all and whether, if it is, no trier of fact could reasonably conclude that the card was not transformative.
. It appears that we did not consider the application of the transformative use defense in Hoffman in any depth because the parties had not raised it before the trial court, and the defense was little more than a last-minute, minor part of their litigating positions on appeal. The California Supreme Court had handed down Comedy III, which first established the defense, between oral argument and our decision. It came to our attention only by means of post-argument letters that the parties submitted pursuant to Federal Rule of Appellate Procedure 28(j). We are therefore convinced that our “earlier panel did not make a deliberate decision to adopt the rule of law it announced,” and that Hoffman does not control. See United States v. Johnson, 256 F.3d 895, 915 (9th Cir.2001) (en banc) (Kozinski, J., concurring).