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Monday, September 12, 2011

ART ON TRIAL: CASE 14





The Issue: Trademarks and Artistic Expression

As indicated by use of the word "trade," a trademark is concerned with matters of the marketplace. A trademark is essentially a government-authorized monopoly on the use of a word, name, phrase, symbol, device, or any combination thereof. It is given to an individual or company for the purposes of identifying themselves and distinguishing their products from those made or sold by someone else. For example, doll and toy maker Mattel, Inc. has a registered trademark on the name "Barbie." If another toy company made a doll and marketed it as "Barbie," such action would almost certainly be seen as a trademark violation because of the potential for consumers to mistake the product for one produced by Mattel. Avoiding such consumer confusion, and the corresponding loss of profits to the trademark holder, benefits both buyers and sellers. But trademarks also impose a cost on the public; as with a copyright, a trademark is inherently at tension with the right of free speech because it creates a specific restriction on who can say what. In an effort to alleviate that tension, the law recognizes limits and exceptions to trademark (and copyright) protection.

The Case: ETW Corp. v. Jireh Publishing, Inc.

Rick Rush has been described as "America's sports artist." The subjects of his paintings include a wide variety of sports and sports' stars. After golfing superstar Tiger Woods won the 1997 Masters Tournament in Augusta, Georgia, Rush created a painting entitled The Masters of Augusta, portraying Woods in three different poses along with a collage of several other past winners of the tournament. Jireh Publications, the publisher and seller of Rush's work, sold prints and posters of the painting. ETW Corporation, the licensing agent for Woods, sued Jireh claiming that, among other causes of action, the painting was a violation of its trademark on the image of Tiger Woods. The Sixth Circuit Court of Appeals disagreed holding that "as a general rule, a person's image or likeness cannot function as a trademark." The Court found that the painting was more than a mere literal likeness of Woods; the work contained a creative component that originated with Rush and was unique to his talent. In other words, Woods' image was merely the raw material for Rush's original artistic expression. As such, Rush's First Amendment right to artistic freedom outweighed Woods' property rights in the profits generated by his image.

http://www.tjcenter.org/ArtOnTrial/trademark.html
The Masters of Augusta
by
Rick Rush

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