In an important win for free expression, a federal appeals court held today that 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. The Sixth Circuit Court of Appeals found that the work was an “informational and creative” form of “expression which is entitled to the full protection of the First Amendment.”
The Reporters Committee for Freedom of the Press, which had filed a friend-of-the-court brief in the case in support of the artist, applauded the decision.
“The court’s decision — that a celebrity’s name or likeness cannot operate as a trademark over which he has complete control — will help stop a harmful trend that has started to affect how artists, photographers and reporters do their jobs,” said Gregg Leslie, the legal defense director of the Reporters Committee. “Trademark and ‘right of publicity’ laws, which can be used validly to ensure that a person’s reputation is not used to falsely imply endorsement of a product, are being used to interfere with newsgathering, and while this case did not involve news reporting, a decision recognizing a broad publicity or trademark right could have been devastating to journalists.”
As the Reporters Committee had argued in its brief, “The First Amendment should not be viewed as a narrow exception to the right of publicity. Rather, the freedoms secured by the First Amendment are presumed to apply to protect expressive activity, and the right of publicity is a narrow exception to such freedoms.”
The case concerned a limited-edition lithograph by artist Rick Rush depicting three images of Woods shadowed by those of other golf champions. The lawsuit, brought by ETW Corp., Woods’s licensing agent, against Jireh Publishing Inc., the Alabama company that published the artwork, was filed in June 1998 and originally dismissed by a district court in Cleveland in 2000. The case had languished before the appeals court for three years.