Very interesting case... Here's an image of one of the paintings, if
anyone's curious (too bad it's so kitschy):
http://www.golfpix.net/store/commerce.cgi?product=1264
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July 3, 2002
http://www.nytimes.com/2002/07/03/sports/golf/03GOLF.html
Artists vs. Icons, With Woods in Middle
By MARCIA CHAMBERS
Little did Rick Rush know when he decided to paint Tiger Woods for a
print called "The Masters of Augusta" that he would set into motion a
major lawsuit involving the estates of some of the most prominent
sports and entertainment figures in American popular culture: Frank
Sinatra, Elvis Presley, Jimi Hendrix, Gene Autry and the legendary
golfer Bobby Jones, all weighing in from the great beyond.
Those are a few of the groups lining up to support Woods in his
opposition to Rush in a case that explores the boundary between an
artist's right under the First Amendment to express himself freely
and to sell his works, and a celebrity's right to control his name
and his image under right-of-publicity and trademark laws.
Among the organizations supporting Rush are Time Inc.; The New York
Times Company; the Newspaper Association of America, which represents
more than 2,000 newspapers in the United States and Canada; and a
group of 73 law professors who spend their lives studying the
intersection of First Amendment and intellectual-property issues.
The case began four years ago, when Rush, who has been painting
sports figures for the past 25 years, produced a series of numbered
prints featuring Woods in the foreground and six other golf greats in
the background. The print, published by Jireh Publishing, a small
company in Tuscaloosa, Ala., run by Rush's brother, was issued in
April 1998 in a limited edition of 250 serigraphs at $700 each,
followed by 5,000 smaller lithographs selling for $15 each.
While the print, which depicts Woods's 1997 Masters victory, may not
be widely known, the lawsuit that has sprung from its creation has
ignited an intense legal battle. Rights-of-publicity laws typically
permit damages if a person's name, photograph or likeness is used for
commercial purposes without the person's consent. Some states,
including California, extend these rights to heirs and others.
Woods lost the first round in Federal District Court in Ohio on April
10, 2000. United States District Court Judge Patrica A. Gaughan ruled
that Rush's portrayal was "an artistic creation seeking to express a
message."
She added, "The fact that it is sold is irrelevant to the
determination of whether it receives First Amendment protection." As
for a trademark violation, the judge found none.
Woods's lawyers appealed to the United States Court of Appeals for
the Sixth Circuit. Oral arguments were held in Cincinnati last
September before a three-judge panel, which has not yet issued a
decision.
The case, ETW Corporation (Eldrick Tiger Woods), the exclusive
licensing agent for Woods, against Jireh Publishing, the exclusive
agent for Rush, has attracted ardent supporters for each side. They
have now submitted friend-of-the-court briefs in order to inform the
court of other interests that may be affected by its decision.
Weighing in for Woods, in addition to the heirs and estates of
Sinatra and Presley, are the players associations of the N.F.L. and
Major League Baseball; each operates a licensing program for players
seeking to make commercial use of their names and likenesses. The
Screen Actors Guild also supports Woods.
Supporting Rush are those concerned that rights-of-publicity statutes
have become pernicious, growing far beyond their intended purpose. In
addition to Time Inc. and the Times Company, they include the
Reporters Committee on Freedom of the Press, the Society of
Professional Journalists, the American Society of Media Photographers
and the Volunteer Lawyers for the Arts.
"Can you knock off thousands of copies of the image of Tiger Woods
and then hide behind the First Amendment and say it is a work of
art?" said Bruce S. Meyer, whose firm, Weil, Gotshal & Manges,
represents the N.F.L. Players Association.
"The judge's opinion threatens the very existence of the right of
publicity, because nearly every commercial product, be it a figurine,
trading card, replica jersey or poster, has design elements that
could be characterized as artistic."
Not so fast, said J. Michael Murray, a leading First Amendment lawyer
in Cleveland, who argued part of the Rush case before the Sixth
Circuit. He represents nine organizations whose members are
photographers across the nation.
"Tiger Woods was the first African-American, Asian-American to win
the Masters at a club that historically had excluded all minorities
for so many years," Murray said. "This is a story of surpassing
importance, for artists, writers, photographers, painters. All have,
we believe, a right under the First Amendment to express their ideas
about this important event, this public figure who now is becoming
more important. They certainly have the right to sell their
expression."
Rights-of-publicity statutes, he said, have gone beyond their
intended use of protecting a celebrity's right to advertise products.
"What we are seeing here are public figures who are attempting to
control what is said about them, what is written about them, what
ideas are depicted in art and in literature," he said. "Under the
claim of a right of publicity to control their persona, they are in
the process of trampling on fundamental rights of expression."
Those on Woods's side say it is not fair to use a likeness of Woods
without first giving him a cut of the earnings (presuming he grants
permission).
Over the years, surprisingly few courts have considered in any depth
the ways of reconciling the right of publicity and the First
Amendment. On April 30, 2001, the California Supreme Court set forth
its analysis on how best to balance the competing interests. The case
centered on lithographic prints of The Three Stooges that appeared on
T-shirts without the consent of the owners of the images, Comedy III.
While the court ruled for Comedy III, it also found that when an
artist is faced with a right-of-publicity challenge, an affirmative
defense may be raised that the work is protected by the First
Amendment because it contains significant elements beyond just the
celebrity's likeness or because the value of the work does not derive
primarily from the celebrity's fame.
It is time to draw the line, said Diane L. Zimmerman, a professor of
law at New York University, who wrote the brief on behalf of the 73
law professors supporting Rush. "I think if we polled each of the 73
people, you probably find several different lines that different
groups would want to draw," she said. "But I think one thing is
clear: We are united in our shared conviction that the prints in this
case are unambiguously fully protected speech over which ETW cannot
exercise control."
Woods's appeals lawyer, Terence J. Clark, takes the position that
Rush is probably entitled to create the painting but not to sell it
or reproduce it. "In this situation, we have a portrait artist do a
painting, and if you stop right there and the painting is done and
you hang it on a wall, that probably is going to be acceptable under
state and common law," Clark said. "But when you commercialize on the
person's image or likeness, well, then you cross that bright line.
And that is what happened here."
Clark said that Rush could have sought permission to paint Woods. And
what if Woods said no? "He is entitled to say no," Clark said. "And
then the painter can't do it."
LeRoy Neiman, perhaps the most recognizable sports artist, said in an
earlier interview that star athletes should share in any profits the
artist earns, even if it is a small share -- a practice he says he
follows. "Why should an artist just looking for a hot market do
something without having an arrangement?" he said. "The player is
entitled to a cut."
The David and Goliath aspect to this case has not escaped the notice
of the lawyers. Jireh Publishing hardly has the resources of ETW. But
the emergence of powerful publishing supporters means that if the
Sixth Circuit reverses the lower court ruling, this case might well
head to the Supreme Court.
"This is a case of paramount importance in the development of sound
First Amendment and intellectual property law," said Dennis J.
Niermann, Jireh's lawyer. "At stake is the livelihood of Rick Rush
and Jireh Publishing, Inc., as well as creative artists across
America."
The Times Company, Time Inc. and the Newspaper Association of America
put it this way in a joint brief: "The point ETW seems blind to is
that the use of Mr. Woods's name or likeness in the context of
artistic expression does not imply his endorsement of the art. Art is
not a product for these purposes. The fact that visual art by its
nature generally involves tangible media does not convert artistic
expression into a product. The medium is incidental.
"Where speech is the thing being sold, the speech is protected. Mr.
Woods's extraordinary accomplishments give rise to many benefits and
a few burdens. One of the burdens, we submit, is having to see
himself depicted in words and pictures by people who have things to
say about him."
-- Carrie McLaren Editor, Stay Free www.stayfreemagazine.org 718/398-9324 ---------------------------------------------------- Rumori, the Detritus.net Discussion List to unsubscribe, send mail to majordomoATdetritus.net with "unsubscribe rumori" in the message body. ---------------------------------------------------- Rumori list archives & other information are at http://detritus.net/contact/rumori ----------------------------------------------------
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