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Appeals court allows artist to sell painting of Tiger Woods

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  1. Libel and Privacy

    NMU         SIXTH CIRCUIT         Privacy    

Appeals court allows artist to sell painting of Tiger Woods

  • A long-awaited decision from the U.S. Court of Appeals in Cincinnati (6th Cir.) holds that a painting of the famous golfer violates neither trademark nor privacy law.

June 20, 2003 — An artist’s painting of Tiger Woods at the 1997 Masters tournament is not a violation of trademark law and does not infringe on the golfer’s right to publicity, a federal appeals court held in a long-awaited opinion issued today.

The decision is a win for artist Rick Rush, whose limited-edition lithograph depicting three images of Woods shadowed by those of other golf champions, was deemed by the court to be an “informational and creative” form of “expression which is entitled to the full protection of the First Amendment.”

ETW Corp., Woods’s licensing agent, filed the lawsuit in June 1998 against Jireh Publishing Inc., the Alabama company that published the artwork. The suit was originally dismissed by a district court in Cleveland in 2000. The case had been pending before the appeals court for close to three years.

In its appeal, Jireh claimed the painting, titled “The Masters of Augusta,” should be afforded First Amendment protection from ETW’s claims of federal and state trademark infringement and violation of Woods’s right of publicity.

“A piece of art that portrays a historic sporting event communicates and celebrates the value our culture attaches to such events,” wrote Judge James L. Graham, a district court judge sitting by designation, on behalf of the majority. “It would be ironic indeed if the presence of the image of the victorious athlete would deny the work First Amendment protection.”

With respect to ETW’s trademark claims, the court said Woods was wrong in assuming he had a trademark right to every image produced of himself.

“[T]here are undoubtably thousands of images and likenesses of Woods taken by countless photographers, and drawn, sketched, or painted by numerous artists, which have been published in many forms of media, and sold and distributed throughout the world,” Graham wrote. “No reasonable person could believe that merely because these photographs or paintings contain Woods’s likeness or image, they all originated with Woods,” and therefore deserved trademark protection.

The court stated, as a general rule, that a person’s image or likeness cannot function as a trademark.

In response to ETW’s claim that Jireh violated Woods’s right of publicity — a form of privacy claim that asserts a right to control the commercial use of one’s identity — the court balanced the “societal and personal interests embodied in the First Amendment” against Woods’s property rights.

“[W]e conclude that the effect of limiting Woods’s right of publicity in this case is negligible and significantly outweighed by society’s interest in freedom of artistic expression,” Graham wrote.

In one of several friend-of-the-court briefs submitted in the case, The Reporters Committee for Freedom of the Press had argued against adoption of a broad right of publicity.

In a dissent, Judge Eric L. Clay said he would have remanded the trademark issue back to the trial court for a determination by a jury.

On the right of publicity claim, Clay said he would have found in favor of ETW. In his opinion, the right of free expression did not outweigh Woods’s right to control his name and image.

(ETW Corp v. Jireh Publishing; Counsel for Jireh Publishing, Inc.: Dennis J. Niermann, Dennis J. Niermann Company, Cleveland, Ohio) WT

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© 2003 The Reporters Committee for Freedom of the Press

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