Monday, March 15, 2010

Can I Sell Golf Paintings and Prints?

Dear Rich: I'm a graphic artist with over 30 years professional experience. Now, I am creating a series of original golf images, in my personal style, to sell as limited edition prints. Some of these images depict famous players but they are not depicted in recognizable events (derived partially from my visual memory abilities and also from sketches made from the TV). I am concerned about being sued by the golfer(s) for rights to publicity ... even despite the fact I am aware that a while ago a very famous golfer's agents sued a sports artist for selling prints of the artist's painting depicting that famous golfer, and lost... essentially due to the ruling determining the athlete's right to publicity did not trump the artist's first amendment rights. Is this good news? Or for every ruling like this, are there just as many that have gone against the artist? Does it matter that, in part, I am painting a known golfer's image based on my sketches from the TV, which is a 'publicly viewable' situation? I know the famous golfer believes that people are buying the art print solely because of his image, but what if the person is buying it primarily because of the quality of the artwork? Also, a famous golf course like Pebble Beach Golf Links (Monterey Peninsula in California) have trademarks on their property/business names. If I create a painting that is merely suggestive of that course's famous holes, but is not actually a factual view... and if their trademark encompasses the phrase "PEBBLE BEACH", can I use the term "PEBBLE"? In other words, is there infringement issues for implying an actual place?  We hope we can answer all your questions before our Stash green tea high wears off. Yes, you are correct -- a painter created images of famous golfers including Eldrick "Tiger" Woods, and then sold the prints. Woods' licensing people sued and lost. 
Why did Tiger lose? The Sixth Circuit believed that the first amendment trumped the right of publicity. A similar ruling happened in a case involving a painting of a famous sports scene from Alabama football history. These are great cases for painters and we want all artists to exploit their first amendment rights (no matter how dopey that can sometimes be). But our takeaway points should also include the fact that both cases took almost four years from filing to final gavel. So, like Clint says, you have to ask yourself, 'Do you feel lucky?' We know that's not the answer you were hoping for but like the fair use defense, that's the reality. Any celebrity or trademark owner can drag you through litigation until a court agrees with you that the balance is tipped in favor of free speech. So, please proceed with caution.
Does it matter whether they're buying the work for my artwork or for the celebrity? That's not the way to frame the question exactly (and in any case it's usually a little of both). In these kinds of lawsuits, the inquiry isn't why people are buying the work, it's more about what the artist has done with the work. Or as one California court put it, "Another way of stating the inquiry is whether the celebrity likeness is one of the "raw materials" from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question." Like fair use analyses, courts seem to be looking for something transformative in the work. The same California court looked at Andy Warhol's celebrity imagery and wrote 
"Through distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself.... Although the distinction between protected and unprotected expression will sometimes be subtle, it is no more so than other distinctions triers of fact are called on to make in First Amendment jurisprudence."
Gee, we're getting a little winded with all this jurisprudential verbiage. Is it okay if we answer one more question and go lie down.
Can I use publicly viewable images from TV? The Dear Rich Staff thinks you're mixing a couple of concepts, here. Generally you don't need a release for a person (or property) that is viewable in the public. An image on TV may be viewable by the TV-viewing public, but it's not the same as 'being in public.'  We know it's hard to separate the two these days and we have problems with it as well. Eventually they'll all be one thing and we won't have to wrestle with it anymore.