Tiger's Paper Tiger:The Endangered Right of Publicity

I. Introduction In 1997, Tiger Woods took the sports world by storm with a recordbreaking performance at the 1997 Masters golf tournament in Augusta, Georgia.1 Alabama resident Rick Rush, a life-long sports fan, also attended the tournament.2 More significantly for Woods, Mr. Rush is a painter who specializes in painting sports subjects.3 Inspired by Woods's phenomenal victory, Rush began work on what became the subject of a bitter and costly lawsuit - a painting entitled The Masters ofAugusta.4 Rush's publisher, Jireh Publishing, Inc. (Jireh), made over 5,000 copies of the painting and sold than to the public.5 Impelled by what he perceived to be the exploitation of his identity, Tiger Woods, via his marketing company, ETW Corp. (ETW), filed suit in the United States District Court for the Northern District of Ohio against Jireh, seeking an injunction and damages.6 Woods based his lawsuit, in part, on a rapidly evolving area of the law known as the "right of publicity."7 The right of publicity is a quasi-intellectual property right that protects the pecuniary interest of an individual's identity.8 In ETW Corp. v. Jireh Publishing, Inc.,9 the district court considered whether the First Amendment's protection of expression shields an artist from liability when he appropriates the likeness of a celebrity without license or consent.10 The case concerned a painting that depicted professional golfer Tiger Woods in three different poses against the backdrop of the Master's Golf Tournament.11 Woods's marketing agent, ETW, sued Jireh for, inter alia, infringement of Woods's publicity rights.12 In its opinion, the court ruled that the First Amendment protected Rush and his assignee, Jireh, from Woods's right of publicity claim, allowing Jireh to copy and sell prints of Rush's painting without license from, or giving proceeds to, ETW.13 The court's decision was consistent with the trend toward broader First Amendment protection of artistic expression and the concomitant erosion in the value of publicity rights.14 In contrast, the assignee of the "Three Stooges"' publicity rights, Comedy HI Productions, Inc., sued a California artist for selling t-shirts and prints of his rendering of the famous trio and won $225,000 in damages. 15 Comedy III Productions, Inc. v. Gary Saderup, Inc.,16 the California Court of Appeals rejected the defendant's First Amendment argument, stating that although art is generally protected by the First Amendment, "reproductions of an image, made to be sold for profit, do not per se constitute speech."17 The court ruled that art does not necessarily convey any message, emotion, or idea and, therefore, is not protected per se.18 The California Supreme Court affirmed the court's judgment but for different reasons.19 Rather than relying on the lower court's reasoning that reproductions are not entitled to First Amendment protection,20 the California Supreme Court ruled that "depictions of celebrities amounting to little more than the appropriation of the celebrity's economic value are not protected expression under the First Amendment."21 Although ETW and Comedy HI were litigated under differing publicity rights laws, the First Amendment issues are identical.22 Nonetheless, the results and reasoning of the two decisions are at complete odds.23 This contradiction illustrates the continued uncertainty regarding the breadth of First Amendment protection in publicity rights cases.24 This Note explores the friction between the right of publicity and the First Amendment's protection of expression.25 Parts I.A and I.B examine the evolution of the publicity right from its humble beginnings as a right of privacy tort to its current incarnation as a commercial interest recognized in just over half of the states.26 Part II examines the justifications for vigorous First Amendment protection of expression and the ramifications of minimal protection.27 Part III explores the growing tension between freedom of expression and the right of publicity. …