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Sports Artists Battling Big Money, Trademark Lawsuits (and Winning!)

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Artists are open to all sorts of renown (commercial success, succès de scandale, their art and faces in books and magazines, their names known far and wide), but Rick Rush and Daniel Moore may be as famous in the annals of law as in the field of sports art. Perhaps more famous, because in the realm of law the two broke new ground and will be a source of inspiration for others, whereas their painting is just very popular.

In the New York Times' sports section on Jan. 30 is my article on Daniel Moore, who has been fighting for seven years a lawsuit by the University of Alabama for portraying scenes from Crimson Tide football games without paying the school a licensing fee. The artist claims the right to free speech and that what he painted are images that anyone seeing the game would have seen, while the university claims trademark infringement for depicting images that contain school logos and insignia. Daniel Moore won a lower court ruling in 2009, which the university is appealing (the hearing is Feb. 2).

Both artists have fought back lawsuits that would have required them to take out expensive licensing agreement before engaging in painting subjects of their choice, and both won on freedom of speech grounds against claims of trademark infringement. What cost them in time and money is likely to pay dividends for other artists.

What I didn't have room for in that Times article is a discussion of Rick Rush, who successfully fought a trademark infringement lawsuit over a period of five-and-a-half years. In 1998, he created the painting "The Masters of Augusta," which commemorated Tiger Woods' victory at the Masters tournament the preceding year, collaging images of Woods in three different positions in the foreground, flanked by his caddy and that of his playing partner, with faded portraits of former golf legends Ben Hogan, Bobby Jones, Jack Nicklaus, Arnold Palmer and Sam Snead in the background. Within a few months, ETW (for Eldrick Tiger Woods) Corporation, the exclusive licensing agent for the golfer, brought a lawsuit against Jireh Publishing, which published a limited edition print of Rush's painting. ETW alleged trademark infringement, claiming that it had registered Tiger Woods' name and had rights in his image, unfair competition (since other artists needed to pay for a license), deceptive trade practices (since it would be assumed that the golfer had endorsed this representation) and violation of Woods' right of publicity. In 2003, the U.S. Court of Appeals in Cleveland affirmed a pro-artist district court ruling that Rush's painting contained expressive and informational content, and that the final work is more than a mere likeness of the golfer. "[A]s a general rule, a person's image or likeness cannot function as a trademark," the district court declared.

Rick Rush tried but was unsuccessful in recouping the $200,000 he spent defending himself in the Tiger Woods suit. (In order to win that payment, he would need to show that the lawsuit filed against him was "frivolous.") His brother and business manager, Don Rush, stated that when the lawsuit was first filed there were 17 people working for the artist and by the end there were only two. He added that "the case killed us" for a number of years. Woods' lawyers, Rush said, sent letters to many of the artist's retailers, claiming that they might be considered liable as well, and "accounts were cancelled until the case was resolved."

Both Rush and Daniel Moore, whose legal costs have been in the hundreds of thousands of dollars, created "legal defense" funds to help with their costs -- Moore's sent donors a poster image of one of his paintings, which makes his more of a revenue stream.

These and other trademark lawsuits filed against artists -- the most notable one was in 1996, when painter Jenness Cortez successfully fought back a lawsuit filed by the New York Racing Association after she refused to pay a license to create horse-racing images at Saratoga Race Course in Saratoga Springs, N.Y., some of which included the racing association's logo -- are defining the balance of artistic expression and trademark property rights. Daniel Moore's lawyer, Steve Heninger, stated that the courts have permitted artists to depict sporting events, such as a football game, horse race or golf match, when the resulting artwork is journalistic (descriptive) or "transformational" -- using an image to make a larger point. "A different problem is raised when you want to portray a professional athlete," he said, "because the athlete has certain rights of publicity, and an artist who simply does a portrait of an athlete might be seen as trading on that athlete's accomplishment to attain unjust enrichment." In short, an artist may portray freely an event at the Super Bowl but not the game's most valuable player without obtaining permission and a license.