Appropriation at Augusta: An Illustration of the Battle Over the Publicity Right and the First Amendment

Each of the core intellectual-property rights — patent, copyright, and trademark — plays a critical role in society, serves a unique doctrinal function, and enjoys a well-understood justification. Patent encourages innovation in the sciences, copyright promotes creation in the arts, and trademark ensures fairness in the markets. In this sense, the lesser-known but frequently litigated state-law publicity right is vastly different. Although it too plays a critical role in society and serves a unique doctrinal function, the right lacks any compelling justification, varies in scope across jurisdictions, and wreaks havoc among judges, litigants, and legislators. Nowhere is the difference more apparent than in publicity-rights cases which pin an athlete against an artist. In a typical publicity-rights case involving a dispute between an athlete and an artist, the athlete sues the artist for depicting his or her name, image, or likeness, the artist raises a number of defenses, and the jury (or more often the court on summary judgment) evaluates them. The so-called “First Amendment defense” advances a practically intriguing and intellectually stimulating argument: Effectively, the defense concedes that the artist’s work infringes the athlete’s publicity right, contends that his or her work constitutes First Amendment-protected speech or expression, and concludes that he is immune from liability. The necessary inference in this line of reasoning, of course, is that First Amendment-protected speech or expression immunizes an otherwise-infringing work from liability. The problem, however, is that it is unclear whether the inference is in fact true. To find out if it is, courts overt time developed numerous legal tests, each attempting to strike the appropriate balance between the two rights. The high-profile Tiger Woods litigation provides an excellent illustration. In that case, Tiger, through his closely held marketing company, sued now-(in)famous artist Rick Rush for depicting Tiger’s likeness in Rush’s “The Masters of Augusta,” which he painted following Tiger’s record-breaking eighteen-stroke victory at the 1997 Masters Tournament. Rush, in response, raised the First Amendment defense. The district court granted summary judgment to Tiger, the Sixth Circuit reversed, and the Court denied certiorari. Although it reached the correct result, the Sixth Circuit’s opinion was hardly a model for clarity. Its opinion failed to navigate the law surrounding the claims, left everyone to discern for themselves the precedential value of the opinion going forward, and perpetuated the above-outlined issues between the publicity right and First Amendment. This need not be the case and the solution is simple: The publicity right should be available to an athlete only in cases where a reasonable person would mistakenly believe that the athlete endorsed a third-party’s product or service. This far-more-limited view of the right — one akin to trademark’s false-endorsement theory of liability grounded in economic-harm and unjust-enrichment theories — would provide a sturdier normative framework through which to understand the right, limiting in the first instance an athlete's ability to bring publicity-rights claims against an artist and lessening the need for uncertain, unpredictable, and sometimes even unworkable tests in this critical area of the law.