Tiger Woods sues artist over paintings
Jaime Jeske
'Enormous constitutional issues at stake' as top golfer launches lawsuit
Lawrence Donegan in San Francisco
Sunday July 7, 2002
The Observer
Rick Rush's paintings - faithfully reproduced great sporting scenes -
might not be considered great art but no one has ever argued they're not
so much art as illegal rip-offs masquerading as art.
No one, that is, except Tiger Woods, who has taken the Alabama-based
artist to court, accusing him of exploiting his likeness for unlawful
commercial gain.
Sporting commentators would call it a David versus Goliath battle; the
small-town painter against the world's richest sportsman. Lawyers and
constitutional experts in the US put the court case on an altogether
higher plane.
'There are enormous issues at stake about an artist's freedom of speech
under the First Amendment of the Constitution,' says one.
'The issue is, can an artist freely create paintings of great athletes
in action and then sell them, or must he pay for the right to paint that
athlete?'
Standing on the sidelines is an array of other interested parties, from
the estates of Frank Sinatra, Jimi Hendrix and Elvis Presley, to the NFL
Players' Association and a group of America's most powerful media
organisations, including Time magazine and the New York Times.
'Mr Woods's extraordinary accomplishments give rise to many benefits and
a few burdens,' the media organisations said last week in a joint
statement. '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.'
That may be so, responds Woods's lawyer Terence Clark, but what happens
when the artist takes that painting, mass-produces it and sells the
reproductions to the public? 'When the painting is done and you hang it
on the wall, that is probably acceptable... but when you commercialise
that person's image or likeness, you cross the line. That's what has
happened here.'
The case, which is going through the appeals court system, is the latest
in a series of worldwide legal battles over sports memorabilia and the
increasingly valuable 'image rights' of celebrities.
Last week a Geneva court ruled incompetent a £1.7 million action by
Brazilian footballer Ronaldo against the luxury watchmakers Montego. He
claimed the company hadn't pay him royalties on sales of watches bearing
his image and his trademark R9. The company counter-claimed for £4.4m
damages, citing his injury problems. But the court ruled that the issue
centred on a trademark, not a personality.
In Kent, the owners of a memorabilia shop won the right to begin legal
action against Victoria Beckham who, they allege, accused them of
selling a fake autographed photo of her husband, the England captain
David Beckham. The accusations almost ruined the memorabilia company,
GT's Recollections, the High Court was told last week.
Woods's legal action dates back to 1998, when Jireh Publishing, a small
company based in Tuscaloosa, Alabama, and owned by Rick Rush's brother
Don, issued a limited-edition print of the artist's painting depicting
the golfer winning the 1997 Masters at Augusta. The prints were for sale
at $700, along with 5,000 lithographs at $15.
Lawyers for ETW, a company founded by the golfer to control the
marketing of his image, invoked what is called rights-of-publicity
statutes, which make it illegal for others to profit from an
individual's name, likeness or photograph without that individual's
permission.
Despite the threat of bankruptcy, the Rush brothers decided to challenge
the action, saying it was a fight on behalf of all artists who want to
paint public figures at public events. 'I believe these events are in
the public domain,' Rick Rush said.
In April 2000 the Federal District Court in Ohio ruled in favour of
Jireh Publishing, saying the painting was 'an artist's creation seeking
to express a message'.
ETW took the case to the appeal court in Cincinnati. No judgment has yet
been issued, but many observers expect the case to go all the way to the
Supreme Court for a definitive ruling.
'We need to establish the hugely important principle that artists like
Rush - as well as newspaper reporters and magazine writers - can depict
or say what they want about celebrity,' said Rush's attorney, Dennis
Niermann. 'As Americans that is our consti tutional right. If you throw
away that freedom of expression, we might as well live in some communist
country where there are rules about what you can and can't say.'
Among those backing Woods is the NFL's Players' Association. 'Can you
knock off thousands of copies of the image of Tiger Woods and hide
behind the First Amendment and say it is a work of art?', the
association's lawyer Bruce S. Meyer asked the New York Times last week.
In a case last year, a court ruled in favour of a company, which owned
images of The Three Stooges that appeared on T-shirts without
permission. The court said unauthorised use of such images might be
protected under the First Amendment under certain circumstances.
Rush's work falls into this category, says Diane Zimmerman, a New
York-based academic, who wrote a legal brief on behalf of 73 law
professors backing the artist. 'Our shared conviction [is] that the
prints in this case are unambiguously fully protected speech over which
ETW cannot exercise control,' she said.
© Guardian Newspapers Limited 2002. All rights reserved.
Jaime
Deborah
1. From an artist's point of view, there is little difference between
Tiger Woods, Princess Di, and a landscape. These are all images that
may appeal to buyers.
2. When a buyer buys a painting, or a print of a painting, he knows
who he is supporting - the artist - not the subject of the work.
3. Tiger Woods did not create his physical image, he did not create
himself. God might have some standing to sue, but Tiger doesn't.
4. I would even extend this artistic license to photographers, so long
as they are creating real works of art with their photographic images.
If, however, they are just taking pictures, then, IMO, they should
have to pay the celebrity for license to profit from same.
Deborah