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Tiger subject of artists legal battle

early two years ago Rick Rush, a painter of sporting scenes, went to the Masters at Augusta National Golf Club to paint the new sensation, Tiger Woods, who wound up with a record-setting victory.

The 52-year-old artist from Tuscaloosa, Ala., who has been painting famous sports figures and events for 23 years, produced a series of numbered prints that were signed by him and called "The Masters of Augusta." The series features Woods in the foreground and other golf greats in the shadows. A limited edition of 250 serigraphs selling for $700 each was issued last April, along with 5,000 smaller lithographs selling for $15 each.

Rush said that he hoped the Woods painting would join many of his others of famous athletes -- like those of Michael Jordan, Magic Johnson and Jack Nicklaus -- as he works on "painting America through sports."

But the Woods painting has ignited a bitter and costly legal battle that pits an artist's freedom of expression against a subject's property rights. The case began last June when the ETW Corporation filed a trademark and right-of-publicity lawsuit against Rush's company, Jireh Publishing, in Federal court in Cleveland. ETW's president is Tiger Woods's father, Earl, and its address in Cleveland is the same as that of International Management Group, the high-powered agency that represents Tiger Woods.

In decades past, athletes and movie stars tended to be happy for whatever publicity they received. Now many want to guide and control that publicity for their own profit, and the law has helped them do so. Some sports figures register their names as a trademark (Woods has) and invoke right-of-publicity laws to assure that others will not benefit from their fame.

The result is a new legal climate that is changing the environment in which some American painters work. The issue is: May an artist at a public event freely create paintings of great athletes in action and sell them, or must he pay for the right to use an athlete's image?

In the 1990's many entertainment and sports stars, guided by agents and law firms, have demanded control of their names and images. They or their agents maintain that in an age of rampant commercialism they must hold onto the hottest property they know: themselves.

ETW was created to control the marketing of Tiger Woods's image. It is represented by I.M.G.'s top outside counsel, Jones, Day, Reavis & Pogue, one of the nation's largest law firms. Since 1997, ETW has sued five other companies that it claims have interfered with Tiger Woods's right to publicity. Jireh, in contrast, is represented by Dennis J. Niermann, a solo practitioner who describes the litigation in his court papers as "predatory." Tiger Woods, according to court papers, was unaware of the lawsuit when it was filed.

Don Rush, Rick's brother and the president of Jireh, said in an interview last week that the litigation was draining the company's resources by plunging it into the daily demands of a major lawsuit.

The case took an ominous turn for Jireh last week when Judge Patricia Ann Gaughan of the United States District Court for the Northern District of Ohio ordered Jireh to turn over the names of the 879 distributors and customers who bought the Woods prints. Timothy P. Fraelich, an associate with Jones, Day, has told the judge he plans to subpoena those clients. Fraelich declined to comment on the case.

Fraelich is seeking a permanent injunction to prevent Jireh from marketing Woods's likeness or image. He has also requested that the remaining Masters prints be destroyed, that ETW get a share of Jireh's profits from previous sales of the Woods painting and that the court award triple damages, attorney's fees and other costs, which could include the cost of deposing 879 clients located around the country.

James D. A. Boyle, a visiting professor at Yale Law School who teaches on intellectual property, said Federal and state laws were making it tough on artists.

"There has been an increasing tendency," Boyle said, "for the law to cover different aspects of a celebrity's life: their name, their likeness, their images both through trademark law and through rights of publicity. At times this has presented the danger that the public domain will be increasingly privatized."

LeRoy Neiman, perhaps the most recognizable name in sports art, began drawing athletes more than three decades ago, long before these changes in case law began to appear. "There were no artists out there," he said. "There was no market. Nobody was selling paintings and prints of Wilt Chamberlain, and in the early Ali days nobody was drawing him. It was a different time."

That began to change in 1977 after a United States Supreme Court ruling in Zacchini v. Scripps-Howard Broadcasting Company. The court said that by videotaping and broadcasting without permission the plaintiff's entire 15-second human cannonball act, a television station had effectively exploited the plaintiff's right to control his own publicity. States soon adopted right-of-publicity statutes, and these, along with Federal court opinions and trademark law, have expanded the rights of stars and athletes to protect their images in the marketplace.

Douglas Mirell, an entertainment, media and intellectual property lawyer at Loeb & Loeb in Los Angeles, said, "I think that there are enormous constitutional issues that are raised by these kinds of statutes, and I think we are just beginning to see how pernicious these laws actually can be." Painters, he said, now must be "very careful because there is the assertion that what you are doing is trading on fame and fortune which would otherwise be exploitable by the celebrity himself or herself."

Mirell represented the private Franklin Mint, of Philadelphia, after ETW sued when a commemorative coin was issued in its "eyewitness medal series" in connection with Woods's Masters victory.

ETW, the first to sue the Mint over the series, raised trademark and right-of-publicity claims. The case was settled.

Don Rush said Jireh's case was a fight on behalf of all artists who want to paint public figures at public events. "It is conceivable that we ought to abandon the fight and cut up the paintings," he said. "And we may have to do that to save the company. But we really don't want to settle."

Rick Rush said: "I believe these events are in the public domain. I want to capture the sporting life style." He said that to eliminate the sports star from his paintings "would sterilize and dilute the image" of what he was creating.

Not all artists agree with Rush's view. Neiman said that star athletes should share in any profits the artist earns, even if it was a small share.

Neiman, who recently commanded $7,500 for a signed, sealed and framed limited-edition serigraph of Mark McGwire, says he obtains permission from his subjects. "In the one of Mark McGwire hitting a home run," he said, "we had the official approval of the team, the league, the player. Each gets a small percentage. I believe in that. Why should an artist just looking for a hot market do something without having an arrangement? The player is entitled to a cut."

Or is he? Under all circumstances? That's what the court must decide -- unless escalating legal costs force Jireh to settle.