Newspapers Defend Artist Against Tiger Woods

By: Joe Strupp Most newspaper executives likely have never heard of Alabama artist Rick Rush. So why have a string of editors and publishers -- from The New York Times to the Society of Professional Journalists (SPJ) -- taken up arms to help Rush in a lawsuit brought by golfer Tiger Woods?

For lawyers involved in the case, the reason is simple: what happens to Rush could very well affect what happens to journalists in the future. "This is truly a First Amendment issue," said Dennis J. Niermann, Rush's attorney.

The battle began in 1998 when Woods' licensing company, ETW Corp. in Cleveland, filed suit in U.S. District Court for the Northern District of Ohio against Jireh Publishing International, an Alabama company owned by Rush's brother that sells the artist's work. The suit claimed that Jireh Publishing engaged in trademark infringement when it began selling copies of a Rush painting of Woods' 1997 Masters Tournament win.

In April 2000, U.S. District Judge Patricia A. Gaughan ruled in Rush's favor, but ETW appealed the case to the 6th U.S. Circuit Court of Appeals, which heard arguments in the case last September and is expected to rule soon.

As both sides continue the legal battle, journalism groups and news organizations have filed "friend of the court" briefs. Among those submitting such arguments are The New York Times, the Newspaper Association of America (NAA), and the American Society of Media Photographers.

"This is a case of freedom of expression, which is a cousin to freedom of information," said SPJ President Al Cross, a political columnist for The Courier-Journal in Louisville, Ky. Cross added that a Woods' victory "would be a bad precedent" for the rights of reporters and newspapers.

SPJ joined the Reporters Committee for Freedom of the Press in filing a 31-page court brief, which argued that the restrictions on Rush could negatively impact news gathering in the future. "Allowing the courts or celebrities to subjectively decide whether they like any given expressive work would result in such a vague standard that journalists, artists, or others would never know whether their use is proper, resulting in a chilling effect on speech," the brief said.

In a jointly filed 19-page court brief, the Times, Time Inc., and NAA called the attempt to restrict Rush's artistic expression "disturbing. ... Visual art is easily as rich and powerful a mode of communication as news reporting." The brief argued that "Our nation's commitment to unfettered free speech is surely expansive enough to allow commentary on and celebration of this American hero."

Attorney Terence J. Clark, who represents ETW in the appeal, could not be reached for comment.

Last year, the Times settled a similar dispute with the National Basketball Association, which had sued the newspaper for selling photos of the 1999 NBA finals on its Web site. The settlement allowed the Times to continue selling the photos, but the paper agreed to place an NBA logo with the ads and provide a link to the NBA's own Web site.