Here's the transcript from Show 120 of weekly Outside The Lines - Athletes vs. Artists

	SUN., JULY 14, 2002
	Host: Bob Ley Reporter: Jeremy Schaap Guests: Vince Lombardi Jr., son of legendary coach Vince Lombardi; J. Michael Murray, First Amendment attorney; Mark Lee, licensing attorney.

BOB LEY, HOST- July 14, 2002. He is recognized worldwide as one of the globe's dominate athletes. Approaching this week's British Open, Tiger Woods' image is known universally. To what extent, though, does Tiger Woods own that image?

BRUCE MEYER, PARTNER, WEIL, GOTSHAL & MANGES- Athletes -- and not just athletes -- any celebrities have the right to control the commercial exploitation of their image.

LEY- Leaving this artist battling one of the best-known athletes in the world.

RICK RUSH, ARTIST- To say that I can't capture a sporting event because I don't have someone's permission? You shouldn't have to do that.

LEY- Aligned against him, Tiger Woods. As the court considers whether all of sports memorable images and figures are off-limits, or fair game to be interpreted by artists and sold.

LeROY NEIMAN, ARTIST - This isn't an art problem, this is a marketing problem.

MEYER- The issue here is really when you knock off thousands of copies of a picture of Tiger Woods or Michael Jordan or any athlete or any celebrity. Should the athlete be paid?

LEY- Today on Outside The Lines, the battle between athletes and artists.

If you believe there is no corner of sports that has not been corrupted by money or that there's no corner of American life where the courts have not intruded, then you will be provoked by this morning's story.

Thursday at Muirfield in Scotland, Tiger Woods continues a quest, now less improbable than ever, to win an unprecedented single-year Grand Slam. The images of Tiger's triumphs, like all epic moments in sports, are ingrained in our collective memory. And in this case, captured on a canvas at the heart of a dispute, who owns the image of this moment, Tiger Woods or anyone with the artistic skill to render it?

Now, athletes are traditionally paid when their likeness appear on trading cards or even bobble-head dolls. That is recognized as pure commerce. But, what of a work of art? Jeremy Schaap explains the conflict between the best-known athlete in the country, and an artist who says his vision and his gifts are protected by the Constitution.

JEREMY SCHAAP, ESPN CORRESPONDENT- Tiger Woods is golf's ultimate champion. He rarely loses when it counts. But now he's fighting a complicated legal battle that experts say, win or lose, will have far-reaching constitutional implications.

R. RUSH- Hey, Brian, let's check that grain to see how it matches up.

SCHAAP- Rick Rush is the unlikely David challenging golf's Goliath. From his studio in Alabama, he's been painting athletes for a quarter-century.

R. RUSH- What I do is I capture history, but I capture it with visual images.

SCHAAP- In 1997, Rush painted "The Masters of Augusta," which celebrates Tiger Woods' ground-breaking win at that year's Masters. Arnold Palmer, Sam Snead, Ben Hogan, Walter Hagan, Bobby Jones and Jack Nicklaus are also depicted in the painting.

R. RUSH- One of the things that, hopefully, my work does that a single photograph cannot do is I try to epitomize the event. What's taking place or has taken place during an event. And bring the history to it.

SCHAAP- Rush ran off thousands of reproductions of the "Masters of Augusta." High-quality reproductions, priced at $700 each, and posters that cost $20. Rush, as is his custom, never sought Woods' permission to do so.

DON RUSH, PRES., JIREH PUBLISHING, RICK'S BROTHER- You know, over the 26 years, I mean, we may have had a half-dozen agents contact us and say you can't do this, but we've had -- never had a lawsuit, ever. Not even really one threatened. And so, Rick and I were very -- we were both very surprised.

SCHAAP- Surprised that in 1998, the ETW Corporation, as in Eldrick Tiger Woods, sued the Rush's publishing company. ETW's lawyers contend that Woods' likeness cannot be used commercially without his permission. That the Rush's are violating well-established right-of-publicity laws.

TERRY J. CLARK, GLOBAL DIRECTOR, INTELLECTUAL PROPERTY GROUP, SQUIRE, SANDERS & DEMPSEY- The value of that painting is only because of Tiger Woods. And this whole right-of-publicity arose decades ago as the result of the court's recognizing that someone who works hard over the years to develop his name, image and likeness such as a sports figure like Tiger Woods is entitled to the fruits of his labor.

SCHAAP- The case has been winding its way through the courts for four years. Two years ago, a federal district judge in Ohio ruled against Woods. She said that "The Masters of Augusta" was, quote, "an artistic creation seeking to express a message." And that the fact that reproductions were sold was irrelevant. ETW's appeal was heard last fall. A decision is expected soon.

D. RUSH- They have the right to exploit their images and their likeness. But what this is, is that they can't step over the line of the First Amendment of our Constitution and tell the artistic person, "you cannot use your talents to express yourself." That's what it's about.

SCHAAP- And that's why the Rush's are supported by The New York Times Company, Time, Inc., and a group of 73 law professors who are among the parties that filed briefs in the case. Meanwhile, Woods' allies include the estates of Frank Sinatra and Elvis Presley, the NFL and Major League Baseball Players Associations and the Screen Actors Guild.

Bruce Meyer represents the NFL-PA.

MEYER- The issue here is really when you knock off thousands of copies of a picture of Tiger Woods, or Michael Jordan, or any athlete or any celebrity, should the athlete be paid? The other issue here that's important is the extent to which there is a message in this piece that's being done of Tiger Woods. The artist and his lawyers have argued that this is protected speech because there is a message in this piece. And I would submit to you, having seen it, that the main message in this piece is that Tiger Woods plays golf and he's really good at it.

SCHAAP- Douglas Mirell is an attorney whose clients include the Franklin Mint. He defended The Mint against a suit filed by ETW, which objected to a commemorative coin Franklin produced. The suit was settled out of court.

DOUGLAS MIRREL, PARTNER, LOEB & LOEB- I think the issue in this case is how far are we going to allow celebrities to go to prevent others from exercising their creative rights and their First Amendment obligation to create works that are new, different, creative, and that in this case as well have a historical and newsworthy component?

CLARK- The real factor, the bright-line factor, I think in Tiger Woods' case with Rick Rush is that they obviously didn't do just one print or one poster, they intended to and did commercialize it by running off a whole bunch of them and selling all of them.

MEYER- I think it's clear that this is a moneymaking enterprise predominantly as opposed to an artistic enterprise.

SCHAAP- In the case of Tiger versus the artist, at the intersection of art and commerce, most of the experts agree that if Rush's paintings are art, they are protected speech. The difficult question is this -- What is art? After all, one man's bobble-head doll may be another man's museum-worthy masterpiece.

MEYER- The problem is, you could claim that anything is artistic. I mean, photography is artistic. Making a bobble-head statue can be artistic. Making a T-shirt can be artistic. I mean, who's to say what's art and what's not?

SCHAAP- In a celebrated case that was recently decided in California, the state's Supreme Court found that T-shirts featuring a drawing of the Three Stooges cannot be sold without the permission of the Stooges' estates. The Stooges' won because the court said the drawing was not truly artistic but rather merely representational.

CLARK- That is a highly subjective test, but it was determined there that these were simply semi-accurate depictions of the Three Stooges themselves, there was no transformative element, there was no extra-expression element. And I think the same thing pertains to the painting that we've got and the posters that we've got here.

MIRELL- Art is what you make of it. And different people have different views of art, just as different judges of the Supreme Court over the years have had different views of what is obscenity. But that's why courts exist.

SCHAAP- Leroy Neiman is the world's best-known sports artist. He says the athletes he paints deserve a certain share of his profits.

NEIMAN- I think that anybody should get a percentage. I think one of the percentage of the original, and if I did it of an athlete or something, what's the difference? Give them a percentage; give them a two-percent, three-percent, whatever they ask for. But if it becomes unreasonable, then it's up to the business people back of the artist to say this is not the right way to go.

SCHAAP- Rush points out, however, that Woods isn't only seeking a share of the profits; Woods' lawyers want the court to decide that without his permission, Rick Rush can't sell Tiger Woods paintings, period.

R. RUSH- That is just an infringement on our First Amendment rights of freedom of speech and artistic expression. That would be the equivalent, Jeremy, of saying that a writer could not write a particular book because somebody didn't give him the OK. And if we start slipping there, it's going to have a profound effect on so many other areas of our life that we can't even predict now.

LEY- So, Rick Rush and Tiger's attorneys are awaiting a ruling from the Sixth Circuit Court, that's the appellate court in Cleveland.

Joining us this morning to consider the conflict between athletes and artists -- Vince Lombardi, Jr. -- he is the son of the legendary Green Bay Packers head coach who makes his living as a motivational speaker, and he joins us this morning from Easton, Washington state.

J. Michael Murray is an attorney who specializes in First Amendment issues. He has filed a brief in the Tiger Woods case supporting the artist, Rick Rush, and Michael Murray joins us this morning from Cleveland.

Mark Lee's law practice is in the field of intellectual property and protecting celebrities. And among his clients -- The estates of John Wayne, Elvis Presley and Frank Sinatra. He also filed a brief in the Woods case supporting Tiger Woods. He joins us this morning from Los Angeles.

Good morning, gentlemen, all.

Vince, let me begin with you. I know there's the principal at play, but what do you think about this specific case? We're talking about several hundred that were sold of the originals and then some copies sold for $20. What do you think of the merits of this suit?

VINCE LOMBARDI, JR., SON OF PACKERS LEGENDARY COACH VINCE LOMBARDI- Well, Bob, I think that the athlete, the celebrity, whatever you want to call them, certainly has a right to a part of the profit. You know, if you want to paint a picture of somebody to hang in your den, great. But if you want to paint a picture and then run off a bunch of prints and sell them and profit from them, then the athlete, the celebrity certainly, certainly has a right to a percentage of that.

Let me go one thing further, too. Tiger Woods and my father have an aura of excellence around them. And no one, at least for my father, who passed away 30 years ago, is going to add to that aura. But, certainly, and I guess this Tiger Woods print is nice, but you know, there are a lot of things out there that are half-baked and schlocky.

And, now all that will do is denigrate somebody like my father. So, not only do I have an interest in if you're going to profit from it, but quite frankly, I have an interest in saying 'no' to you if the thing is half-baked and schlocky and will make my father look bad.

LEY- OK, Michael Murray, on the interest of free speech, I mean, how do you make that subjective judgment between something that's good and tasteful and something that's bad? Should it all be out there?

J. MICHAEL MURRAY, FORMER PRES., FIRST AMENDMENT LAWYERS ASSOCIATION- Absolutely. I mean, this country is based on freedom of expression. And censorship is anathema to that. I mean, you have to understand, this event, the 1997 Masters victory by Tiger Woods transcended golf and it transcended sports. It was one of the most important events of that decade. I mean...

LEY- But do you put that in the same category as somebody who wants to put out potholders with Vince's father on it?

MURRAY- I think we're dealing with freedom of expression; we're not talking about widgets, we're not talking about tennis shoes, and we're not talking about products that you put his image on and you try to imply that he's endorsing it. We're talking about works of art that communicate an important message about one of the most important political, cultural, sociological events of our lifetime.

The first African-American/Asian-American golfer to win a tournament known as the Masters at a club that had historically excluded minors. And for the celebrity to suggest that he can monopolize the conversation about that important event and to tell artists and painters and photographers and journalists and writers that they cannot communicate their ideas and their images and their take on that important cultural event is to give to the athlete censorship power that no government should ever have, and certainly a private individual ought not to be able to exercise that kind of a control over what is said and depicted about him.

LEY- Now, Mark Lee, as Michael's made the point, this was history that particular 1997 Masters victory, and so are you trying to censor history when you say, "don't sell that painting?"

MARK S. LEE, ATTORNEY, REPRESENTS ESTATES OF FRANK SINATRA, ELVIS PRESLEY, PRINCESS DIANA- Not at all. If he had made one painting and had released it, that would have been fine. But as you pointed out, what they would like to do is to be able to take that painting and put it on potholders and sell as many as they'd like. And they claim, oh, that's protected by the First Amendment.

This isn't about communication; it's about commerce. People buy those posters because they depict an image of Tiger Woods, not because they communicate anything about the Masters golf tournament.

LEY- But what about the subjective decisions, Mark, that have to be made and that I guess the judges may make and have made in other cases, between art and commerce. You have to draw the line somewhere. Where do you draw the line?

LEE- It's a very difficult line to draw, and frankly, judges have been less than clear in attempting to draw it. Basically, I think you have to say to yourself, why do people want to buy this poster? If they want to buy it because it depicts an image of a celebrity, then they're benefiting off the image, and the celebrity should be compensated. If, on the other hand, they buy it because of its informational value, or because it communicates something important, then you can maybe look and argue the other way.

LEY- Well, Vince, if someone were to make a print, say, of the classic Packers, 30, 40 men maybe an old team picture reproduced, or something like that, would you expect that everybody in that print get a cut of that?

LOMBARDI- Oh, yeah, that's a little more difficult. You have almost a diminutive kind of thing there, but, yeah, basically as a principal, yes, if they're going to reproduce somebody's image, even the whole team, and, again, profit from it, I don't see the difference between that and one individual likeness. Having said that, you know, I recognize that if there's 40 of them, it could be problematic.

LEY- You've got to make decisions...

MURRAY- You know this...

LEY- Go ahead, please...

MURRAY- This issue of for-profit is such a false issue. Because there is nobody in the business of disseminating expression, including your station, including Time Magazine, every newspaper, every author, every publisher --speech is published in order to make a profit. And that's true of artists, that's true of painters, sculptors, photographers.

The fact that they're trying to earn a living by selling artistic expression doesn't take away from the First Amendment value of it. And the Supreme Court has made it clear over and over again that it makes no difference whether you're a for-profit business when it comes to publishing expression; it is fully protected by the First Amendment. And this notion that Rick Rush should not be allowed to earn a living by creative talent that he has in selling his paintings is a false notion.

It doesn't matter for purposes of freedom of expression. If it did, no one could publish newspapers, no one could sell books, no one could sell paintings, and the entire country would be deprived of vast quantities of constitutionally protected speech. So, it's a false issue.

LEY- Let me step in right there, we'll pick it up at that point. We will continue in just a moment to consider the issue of courts restricting artists. You may know this painting of the Jack Dempsey-Luis Firpo fight. Might a future court ruling endanger art such as this?

AL KALINE, MLB HALL OF FAMER- For somebody like Tiger Woods, who is certainly the best in his field, I'd be a little concerned that somebody might be manufacturing paintings and then duplicating them and selling them, I think they should not do it.

LEY- We continue. Back with Vince Lombardi Jr., Michael Murray and Mark Lee considering athletes versus artists. We mentioned before we went to break, Mark, the George Bellows painting, the very famous painting from the 1922 fight at the Polo Grounds. One of the iconic pictures of sports in the 20th century.

Are we on a slippery slope if your side were to win this case where, say, a Will Moses or some well-known current artist wanted to do Tyson-Holyfield? And give it the same stature? You'd be told, fine, but you can't sell it, even in a book.

LEE- Absolutely not. A painting like that would not be implicated at all by this case.

LEY- And the difference between that painting and Rush's picture is what?

LEE- The difference is not in the painting, necessarily, although you could make an argument about that. The fact is, courts are not very good at evaluating when art is art and when it is commerce. However, what it is about is about commercial exploitation of someone else's property.

Let me explain what I mean by that. Certainly, Mr. Rush has the First Amendment right to create a painting. Does that mean he could walk into an art store and steal the paper he needed to print his posters on? Does it mean he can walk in and take the inks and other materials he needed to create it? No, because that's someone else's property.

What we're dealing with here is a situation in which Mr. Rush wants to take someone else's intellectual property, namely Mr. Woods' image, and commercially exploit that for his own benefit, without Mr. Woods' permission.

LEY- But could he publish a book that would, say, take his 26 years of sporting images? Would you have a heck of a harder time trying to shut down the publication of a book than the sale of serigraphs?

LEE- Publication of a book like that would not violate the right of publicity laws in any state, and I…

LEY- He'd be making money from that book, would he not, though?

LEE- Certainly.

MURRAY- That's the point, there's no principle distinction between a book, between a journalistic piece, between Time Magazine putting Tiger on its cover and selling extra copies of its magazine for profit, and a painter like Rick Rush using his talents to comment on an important public figure. He has a right to do that.

LEE- Well, there is an important difference, and the important difference is, why do people buy it? People buy Time Magazine because of the informational content that it has. Why do people buy that poster? Do they buy it because of its artistic merits, or do they buy it because it's an image of Tiger Woods? That's a factual question that a jury should decide.

MURRAY- They buy it because it's an important event in history, which includes Tiger Woods. Painters paint about what happens in society. And people want to buy the expressive image that is created that includes the important public figures who are -- and their great accomplishments. That's why they buy it, because people write and paint and sculpt about important public events and public figures.

LEY- Vince, let me bring you back in to talk about the idea of image. In this respect, here you've got Tiger Woods, who's made almost a half-billion dollars -- a half-billion with a "B" dollars in terms of what he's brought in in endorsements and winnings, and IMG, his agency, a huge global agency going -- portrayed as the David -- or the Goliath -- in this entire battle. You're aware of the necessity of public image, do you think that when you pursue a suit like this, though, from the standpoint of the celebrity, you risk some of that image?

LOMBARDI- No, I don't. Not at all. I think, again, you just have to protect the image. And if that involves going into court and aggressively pursuing your rights, I think if you went out on the street today, most people would agree with you that the image is something you need to protect. And therefore, no, I don't think it would sully anybody's reputation, a lawsuit of that nature.

LEY- Vince, we're short on time. In one sentence, what do you want to see happen. You want Tiger to win this case?

LOMBARDI- Sure. It's in my interest.

LEY- Michael, what do you think will happen?

MURRAY- Well, again, I think we'll prevail. I think that, again, the disparity of resources -- Rick Rush has been defended by a lawyer, Dennis Niermann, but the resources that Tiger has at his disposal render it all the more important that a smaller company such as Rick Rush's be victorious here so that not everyone is silenced by power.

LEY- Mark, do you think you'll win?

LEE- I learned long ago never to predict how courts would rule, but I believe on the merits that Tiger should win in this case.

LEY- All right, gentlemen, thank you all. Thanks to Vince Lombardi, Jr., to Michael Murray and to Mark Lee.

Next, we will be checking our e-mail inbox on last week's topic on the passing of Ted Williams. Who exactly was the best ever hitter in the history of the game?

LEY- Last week on the passing of Ted Williams, we actually stayed a little bit inside the lines to consider the question many were asking on the passing of this larger-than-life figure -- Just who was the greatest hitter in the long history of baseball?

Well, these e-mails to our in-box this week from Aberdeen, South Dakota- "The greatest hitter was, without question or debate, Ted Williams, and wasting time talking about Babe Ruth in the same breath is just silly. It's not a debate worth having."

From Oshkosh, Wisconsin- "When taking into account the five years Ted Williams missed serving our country in the prime of his career, he has to be considered the greatest of all time."

And this opinion- "Ruth missed four years of his own early in his career when he was pitching. Ted Williams should be remembered as a great American, a great person, and the second greatest hitter of all time."

Those thoughts registered on line at ESPN.com, the key word OTL Weekly, for our library of transcripts and streaming video. We look forward to your thoughts on the conflict between athletes and artists. Our e-mail address- otlweekly@espn.com. Thanks for being in touch.