Re: Tiger Woods Suit

On 02/23/99, Gloria Phares <gcphares[_at_]pbwt.com> wrote:
>
> 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.

I am in full agreement with you: I think courts HAVE unjustifiably given less First Amendment protection to visual expression in the I.P. context; that visual expression should be given as much protection under the First Amendment as verbal expression; and that the "usual exceptions" to privacy suits should be applied.

The difficulty is that instead of approaching I.P. cases from a First Amendment perspective, courts tend to approach I.P. cases from a property right/natural right kind of perspective. That leads them to try to balance the First Amendment right against the I.P. rights involved, and all too many of them are willing to conclude that visual and artistic expression is not as necessary or important to society in the way that they believe verbal expression is.

> 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.

Actually, I think that for most courts, the difference is commercial instead of editorial. The newspaper makes money from selling the paper as a whole, not from any one particular editorial; and the editorial cartoon is typically trying to make a point. But the artist is making money more directly from selling a picture of Tiger Woods, and it is difficult to articulate what the "point" is besides simply celebrating a great athlete. Because a direct payment of money is involved, courts are willing to question the artist's motives and to restrict the artist's subject matter in a way that they would never do in a news context.

> 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.

I think most courts would be inclined to view the limited edition work exactly the same as mugs or t-shirts from a right of publicity point of view. If it were a single original painting in a museum, they might take the broader point of view that you advocate. I agree with you that the First Amendment argument SHOULD be taken more seriously; I am just skeptical that it WILL be.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu>

[P.S. I will be out of the office until March 8, and will resume posting then.] Received on Thu Feb 25 1999 - 00:24:00 GMT