Tiger Woods Loses Second Time to Tuscaloosa Sports Artist

On June 20, 2003 the Sixth Circuit Court of Appeals affirmed, in a 2-1 majority vote, an April 10, 200 decision that rejected Tiger Wood's claims of trademark and right of publicity violations in connection with a painting by artist Rick Rush of Tuscaloosa, Alabama. The Sixth Circuit rejected Wood's attempts to have every one of his images "... to constitute Woods himself as a walking, talking trademark." The full text of the opinion is available through Lexis/Nexis at 2003 U.S. App. LEXIS 12488. The opinion is also available at http://www.rcfp.org/news/2003/0620etwcor.html.

On June 20, 2003 the Sixth Circuit Court of Appeals affirmed, in a 2-1 majority vote, an April 10, 200 decision that rejected Tiger Wood's claims of trademark and right of publicity violations in connection with a painting by artist Rick Rush of Tuscaloosa, Alabama. The Sixth Circuit rejected Wood's attempts to have every one of his images "... to constitute Woods himself as a walking, talking trademark."

Wood's company, ETW -- Eldrick Tiger Woods -- Corp. sued Alabama Sports Artist Rick Rush's art distribution company, "Jireh Publishing," on June 26, 1998 for using his image in a painting entitled The Masters of Augusta, which commemorates Woods's victory at the Masters Tournament in Augusta, Georgia, in 1997. At that event, Woods became the youngest player ever to win the Masters Tournament, while setting a 72-hole record for the tournament and a record 12-stroke margin of victory. In the foreground of Rush's painting are three views of Woods in different poses. In the center, he is completing the swing of a golf club, and on each side he is crouching, lining up and/or observing the progress of a putt. To the left of Woods is his caddy, Mike "Fluff" Cowan, and to his right is his final round partner's caddy. Behind these figures is the Augusta National Clubhouse. In a blue background behind the clubhouse are likenesses of famous golfers of the past looking down on Woods. These include Arnold Palmer, Sam Snead, Ben Hogan, Walter Hagen, Bobby Jones, and Jack Nicklaus. Behind them is the Masters leader board. The painting can be viewed on-line at http://www.jirehpub.com/images (golf).

Representing ETW at the District Court level was the global law firm of Jones Day. After losing, ETW changed attorneys and hired Squire, Sanders & Dempsey to handle the 6th Circuit Appeal. Throughout this case, Jireh Publishing and Rick Rush have been represented by Dennis J. Niermann of Cleveland, Ohio (216/375-2696). Mr. Niermann is a solo practitioner. This was Mr. Niermann's first trademark and first right of publicity case. Mr. Niermann, an avid golfer himself and a huge fan of Tiger Woods upon learning of the 6th Circuit's landmark decision said "Tiger Wood's is an artist on the golf course, and will certainly become the best player in golf history. Rick Rush is himself an icon in the world of sports art. Now, finally, both Mr. Woods and Mr. Rush will be able to earn a living by expressing themselves through their awesome God given talents. The First Amendment is alive and well in the United States -- the greatest country in the world."

In ruling in favor of Jireh Publishing, the District Court in Cleveland ruled that "the print at issue herein is an artistic creation seeking to express a message. The fact that it is sold is irrelevant to the determination of whether it receives First Amendment protection." The 6th Circuit Court of Appeals agreed, saying that "[speech is protected even though it is carried in a form that is sold for profit."

This case, captioned ETW v. Jireh Publishing, appears destined to arrive at the steps of the United States Supreme Court, if ETW has its way. Joining ETW on amicus ("friend of the court") briefs were the players associations for Major League Baseball and the National Football League, as well as the Screen Actors Guild and the estates of Elvis Presley, Jimmy Hendricks, John Wayne, Frank Sinatra, Gene Autry and others. Amicus supporting artist Rick Rush and Jireh Publishing were Volunteer Lawyers for the Arts, Reporters Committee for Freedom of the Press, the American Society of Media Photographers, 73 Independent (Constitutional and Intellectual Property) Law Professors from across the United States, as well as the New York Times and Time, Inc. (which publishes Sports Illustrated and People Magazines, among others).

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