Re: Tiger Woods Suit

On 02/20/99, Lee Tien <tien[_at_]well.com> wrote:
>
> There was a case involving Joe Montana and the San Jose Merc a few
> years ago. As I recall, the Merc reused sports-news photos of Montana
> for a special supplement commemorating the 49ers, or something along
> those lines. I think it was also right of publicity, but the Merc won.
> How different is that from Woods' case?

On Mon, 22 Feb 1999, Tyler T. Ochoa, Associate Professor, Whittier Law School <tochoa[_at_]law.whittier.edu> repied:
>
> Not very different; but there are two important points. First, I
> think a newspaper or news magazine will always be given somewhat more
> deference than a Franklin Mint-type place that is selling commemoratives
> plates, plaques, and art. Admittedly, the Mercury-News WAS selling a
> commemorative poster, but it was simply a reprint of a page that had
> actually appeared in the paper.

and

On Mon, 22 Feb 1999, Mark Lemley, <mlemley[_at_]mail.law.utexas.edu> also replied:
>
> The court expressly based its decision on the fact that this was a press
> outlet engaged in news reporting and incidental activities. I'm not
> sure the same result would obtain outside that context.

I wonder if these responses aren't giving short shrift to visual rather than verbal expression. There is now considerable case law (Supreme Court and courts of appeals) acknowledging that visual expression, like verbal expression, is protected under the First Amendment. Wouldn't the usual exceptions from privacy statutes/laws provide protection for that kind of expression? I'm not sure that the result should be different here.

If an editorial cartoonist of a newspaper had included Tiger Woods in a cartoon, wouldn't we think that the drawing should be eligible for protection under the First Amendment exceptions? The difference here is that the artist's comment is not so barbed and is not in a newspaper, but it seems to me that the artist's view of Tiger Woods in a public competition is still protected expression. George Bellows did paintings of boxing matches, which are known in part for their visual "comment" on the spectacle, the spectators, etc. The artist's comment/expression here may be more benign, but that doesn't mean that it's not protected.

We're not talking about "mere merchandise." The artist did a limited (admittedly large) edition of a work, which both he (and apparently the buyers) consider works of art. I might not feel the same if the artist authorized reproductions on the side of mugs or golfing paraphernalia, but on these facts, I think the First Amendment argument should be taken more seriously.

One person on the list said that the First Amendment is given short shrift under publicity statutes, but in my experience that verdict seems a little harsh. The possible difficulty for the artist here is that Ohio (I'm told) has no privacy statute with specific exceptions for First Amendment uses, and that the case law has not been so helpful.

Nevertheless, ... (see above).

Gloria C. Phares
gcphares[_at_]pbwt.com Received on Tue Feb 23 1999 - 16:30:28 GMT