The Sixth United States Court of Appeals held that an artist who creates an art piece resembling a celebrity enjoys the First Amendment protection so long as the art piece goes past a literal depiction of the celebrity but instead adds a significant expression which in turn proves greater than a celebrity’s publicity rights.
An artist enjoys first amendment protection when his art depicts a celebrity, the artist adds a significant expression to the artwork, and this protection is greater than a celebrity’s right to publicity.
ETW Corporation (Plaintiff) represents Tiger Woods a world renowned golfer. Plaintiff sues Jireh (Defendant) for his artwork of Tiger Woods. The Plaintiff brings suit for trademark infringement, dilution, unfair competition, false advertising, and violation of the right to publicity. Jireh filed a motion for summary judgment which was granted and ETW appeals.
When an artist depicts a celebrity in a piece of artwork and adds significant expression, does the artist enjoy First Amendment protection against the celebrity’s right to publicity?
Yes. The Court applies a test previously applied by the Supreme Court of California where they held that if an artist merely depicts the artist which mirrors an imitation of the celebrity then it violates the celebrity’s right to publicity. However, this court adds that when an artist adds significant expressions then the artist enjoys First Amendment Protection for his work.
The dissent argues that the artwork is vastly similar to already published work by Tiger Woods. The dissent argues that nothing of significant or substantial content was added to this artwork and that the motion for summary judgment should be denied.
Here, the court looks at the fact that not only was Tiger Woods depicted in this artwork but also his caddy, the golf course, the clubhouse and a variety of other pieces which rendered the artwork something more than a mere imitation.