ETW Corp. v. Jireh Publishing — Right of Publicity

The Sixth Circuit held that an artist's print of Tiger Woods's 1997 Masters win was transformative First Amendment speech, defeating both Lanham Act and right-of-publicity claims.

In 1997 Tiger Woods won the Masters at twenty-one, the youngest champion in the tournament’s history, and the moment instantly belonged to sports lore. When the artist Rick Rush painted that victory and Jireh Publishing sold limited-edition prints of it, Woods’s licensing company sued, arguing that no one may sell Woods’s image without permission. In ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003), the Sixth Circuit disagreed. Writing for the panel, District Judge James L. Graham (sitting by designation) held that the painting was a transformative work of art entitled to “the full protection of the First Amendment,” defeating both the federal trademark claims and an Ohio right-of-publicity claim. The case became a leading authority on how free-speech principles cabin the right of publicity.

At a glance

Case: ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003), decided June 20, 2003.
Court: United States Court of Appeals for the Sixth Circuit; opinion by District Judge James L. Graham (sitting by designation), joined by Judge Eugene Siler; Judge Eric Clay dissenting.
Posture: Affirming summary judgment for the defendant, Jireh Publishing.
Holding: An artistic print depicting a famous athlete’s newsworthy achievement contains substantial transformative elements, is protected by the First Amendment, and does not violate the Lanham Act or the Ohio common-law right of publicity.
Significance: Imported the Comedy III transformative-use test into right-of-publicity analysis at the federal appellate level and underscored that expressive art can outweigh commercial-identity claims.

The painting and the claims

ETW Corporation holds and manages Tiger Woods’s intellectual property, including a registered trademark in his name. Rick Rush, who specializes in commemorative sports art, created a work titled The Masters of Augusta. It centers on three views of Woods in mid-swing and follow-through during the 1997 Masters, set against the Augusta National clubhouse, with the likenesses of past Masters champions looking down from above. Jireh published and sold 5,000 signed prints and 250 larger canvas editions.

ETW sued, asserting trademark infringement and false endorsement under sections 1114 and 1125(a) of the Lanham Act, trademark dilution under section 1125(c), unfair competition, and the Ohio common-law right of publicity. The theory was that the unauthorized use of Woods’s image and name implied his sponsorship and exploited the commercial value of his identity. The district court granted summary judgment to Jireh on all counts, and ETW appealed.

The Lanham Act claims fail

The Sixth Circuit first rejected the trademark theories. As to the registered mark in Woods’s name, the court noted that the words “Tiger Woods” appeared only in the narrative description and on the back of the print, not in a way that functioned as a trademark on the art itself. More fundamentally, a person’s image or likeness is not, in itself, a protectable trademark; Woods’s general persona could not be claimed as a mark that Rush had infringed.

On false endorsement, the court applied the likelihood-of-confusion framework but weighed it against the strong First Amendment interest in an artistic work. Surveys suggesting some buyers thought Woods might be affiliated with the print did not override the expressive nature of the piece. The court invoked the principle that titles and content of expressive works receive heightened protection and that the public interest in free artistic expression outweighed a slight risk of confusion about endorsement.

Transformative art and the right of publicity

The publicity analysis is the opinion’s lasting contribution. Surveying the competing approaches, the court adopted the transformative-use test the California Supreme Court had announced in Comedy III Productions, Inc. v. Gary Saderup, Inc. That test asks whether a work merely exploits a celebrity’s likeness for its own sake or instead adds significant creative elements that transform it into something more than a literal portrait — the artist’s own expression.

Applying it, the court found Rush’s work easily transformative. It was not a mere copy of a photograph but “a collage of images” conveying a message about the significance of Woods’s achievement in golf history, combining multiple poses, the course, and historic champions into a composition with its own meaning. “Because Rush’s work has substantial transformative elements, it is entitled to the full protection of the First Amendment,” the court concluded, and the right of publicity had to yield. Judge Clay dissented, arguing the majority undervalued Woods’s commercial interest and the print’s predominantly commercial character.

Open questions

Where is the transformative line? The test protects collages and commentary but offers little certainty for closer cases — a single stylized portrait, for instance, or merchandise that adds modest artistic flourishes.
How much does newsworthiness carry? The opinion leaned heavily on the event’s historic importance, leaving unclear how the analysis applies to art depicting celebrities in non-newsworthy or purely promotional contexts.
Does the medium matter? The court protected fine-art prints; whether the same reasoning shields t-shirts, posters, or mass merchandise bearing the identical image is unsettled.

Implications

Transformative expression beats publicity claims. Artists who add significant creative meaning, especially when commenting on newsworthy events, have a strong First Amendment defense to right-of-publicity suits.
A likeness is not a trademark. A celebrity’s general image or persona cannot be claimed as a protectable mark; trademark theories require an actual source-identifying use.
Confusion surveys are not decisive for art. Some consumer confusion about endorsement will not defeat an expressive work when free-speech interests are strong.
The Comedy III test went national. ETW helped spread California’s transformative-use framework into federal practice, shaping later disputes over video games, paintings, and digital media.
Licensing programs have limits. Even a sophisticated rights-management operation cannot bar genuinely expressive depictions of its client’s public achievements.

Frequently asked questions

Did Tiger Woods sue the artist himself? The suit was brought by ETW Corporation, the entity that manages Tiger Woods’s intellectual property and licensing, against Jireh Publishing, which marketed artist Rick Rush’s print. The Sixth Circuit ruled for Jireh on both the Lanham Act and Ohio right-of-publicity claims.

What test did the court use to protect the painting? It borrowed the transformative-use test from the California Supreme Court’s Comedy III decision, asking whether the work adds significant creative elements beyond a literal depiction of the celebrity. Because Rush’s collage commented on a historic sporting event, it had substantial transformative elements and received full First Amendment protection.

Does this mean anyone can sell art using a celebrity’s image? No. The decision protects expressive, transformative works, especially those commenting on newsworthy events. Merely commercial uses, literal reproductions on ordinary merchandise, or works that confuse consumers about endorsement can still violate trademark or publicity rights.