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Ninth Circuit Finds Sale of Paintings Protected by First Amendment

In a published decision, the Ninth Circuit today found that the sale of a painter’s original works are protected by the First Amendment.

In White v. City of Sparks, painter Steven White challenged the constitutionality of a Nevada city ordinance that ostensibly required him to obtain a permit before selling his paintings in public parks. The Ninth Circuit sided with the artist, finding: “So long as it is an artist’s self-expression, a painting will be protected under the First Amendment, because it expresses the artist’s perspective.” The court rejected the city’s argument that the sale of the paintings removes them from the ambit of protected expression. In so finding, the Ninth Circuit joined the Second and Sixth Circuits, which have reached similar conclusions.

This has significant trademark ramifications. In ETW Corp. v. Jireh Publishing, Inc., for example, the Sixth Circuit found the First Amendment entitled sports artist Rick Rush to sell paintings of Tiger Woods without Mr. Woods’ authorization. In that case, which the Ninth Circuit cited, the Sixth Circuit found the painter’s speech was entitled to full First Amendment protection and not the more limited protection afforded commercial speech “even though it is carried in a form that is sold for profit.”

The Sixth Circuit further found the Lanham Act should be applied to artistic works only where the public interest in avoiding confusion outweighs the public interest in free expression. Applied to Mr. Rush’s paintings, the court found the First Amendment trumped the Lanham Act. Even if some members of the public would draw the incorrect inference that Mr. Woods had some connection with Rush’s print, the court decided, the risk of misunderstanding “is so outweighed by the interest in artistic expression as to preclude application of the [Lanham] Act.”

The Sixth Circuit likewise resolved the tension between Mr. Woods’ right of publicity and the First Amendment in favor of free speech: “After balancing the societal and personal interests embodied in the First Amendment against Woods’s  property rights, we conclude that the effect of limiting Woods’s right of publicity in this case is negligible and significantly outweighed by society’s interest in freedom of artistic expression.”

The White decision can only increase the likelihood that the Ninth Circuit will apply similar analysis when it gets the chance.

The case cite is White v. City of Sparks, __ F.3d __, No. 05-15585 (9th Cir. 2007).

Posted on August 29, 2007 by Registered CommenterMichael Atkins in | Comments1 Comment

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Reader Comments (1)

Yes, its me.

I would like to thank the Seattle Trade Mark Layer(s) and the Washington Lawyers for the Arts for posting this important information. If Citizens don't know what their rights are,
they have none.

Such is the case with the Arts and Artists in America today. I have traveled as an Artist for over 40 years all over this country, painting and selling my pictures along the way. Sadly, in those 40 years I have witnessed the commercialization of the Arts in America.

Many years ago if the public went to an Art show, chances are it was held by a community Art Guild or Society. The members of such a group would just go down to the parks a couple of times a year and have shows. They didn't need a permit!

These shows helped our Art Societies gain new members as well as offered opportunities for local Artists to be showcased with their self created fine art in the public parks. It allowed them to also make a little money to buy art supplies to keep being Artists. The great thing was that ANYONE could join the art society and participate. It opened opportunities for artists of all ages and skill levels to come together and learn from each other and be showcased in their communities.

Sadly, take a good look at all of our public parks today. Filled with sports facilities but NOT ONE ARTIST to be found. NOT ONE! Why? I can tell you that I have a letter from a major City in AZ. that tells me that if I put up and easel in their parks, I must have a million dollar insurance policy. If I paint a painting and hand someone a business card, they tell me I have crossed some "commercial" line and become a "transient merchant"...which isn't allowed in their City....so I could be arrested, fined, imprisoned and have my Art confiscated! Yep, and I'm the one that just won that ruling from the 9th. Don't be too amazed because this kind of thing is going on all over America in the Arts today.

It is illegal to be an Artist in most public parks across America. You can play ball but not paint a picture! "Commercialization of Artists"!

I watched over the years as our Art Societies dropped by the way side as Special Interest Groups started getting permits from City Governments to hold "Art Festivals" on public property. In these festivals the promoters are interested in making money for their cause, what ever great cause it might be. So, the promoters of these "Art" festivals started letting anything and everything into the shows in order to sell the most amount of spaces for the most amount of money, to raise as much money as possible for their cause.

Now I don't want you to think I'm against Art Festivals. I'm not! Well, kinda. As long as they operate without violating Artists Rights.

I just want to point out to everyone the obvious. These are not "Art" festivals at all!
They are market places where First Amendment protected Artistic Self Expression is being sold right along side of "Commercial Merchandise" which is lacking in full protection. As this has happened over these past 40 years people have lost the understanding of the important difference between fine Art and commercial merchandise.

As that has happened Artists have lost their First Amendment protections and have been turned into "commercial vendors" by Cities across America.

When Artists are labeled as "Commercial Vendors" they are placed under countless layers Governmental Red tape, Licensing requirements, fees, finger prints, sales taxes, police background checks and even out right denial of First and Fourteenth Amendment Rights. Who do these restrictions hurt the most? Kids who are under age and can't get licenses, Senior Citizens who censor themselves rather than deal with all the red tape hurdles, and Minority people who are often reluctant to get involved with the countless piles of red tape involved with getting licenses. That is exactly what has happened to the Arts in America today.

So, what is the difference between "commercial" merchandise and "Art" which is protected?
Does anyone remember what fine art is? There sure are a lot of City Attorneys that don't seem to know the dif.. Do you?

The High Courts have been defining these important points dealing with the Arts and the questions of "commercial" verses "non-commercial" merchandise offered for sale.
The question is; Where is the line drawn, between "Art" which is fully protected by the First Amendment and therefore limiting government control.....and "commercial merchandise" where government can exert a lot of control?

Key words, "Utilitarian" and or "Functional"

The courts held that my Art was fully protected by the First Amendment because of a couple of very important factors. One, it was MY SELF CREATION, my Self expression...not that of another, such as works RE-sold in galleries.
Second, my paintings have NO value beyond the message they convey. You can't wear my paintings, eat them, ride on them or saddle a mule with them. All you can do is look at them and absorb their expression. They are purely expressive with no other value...utilitarian, functional or otherwise. As a matter of fact I have ruined the commercial value of the paint, the canvas, and even the stretcher have lost all commercial value. Paints dry, canvas cut up, and stretcher shot full of staples.

While that painting is in the original creating artists hands it has no value beyond the message it conveys. It is pure expression and entitled to the FULL protection of the First Amendment, just as much as your spoken or written words.

"Commercial merchandise" however does have a value beyond the message it conveys. So this is where the Courts have drawn the line that defines commercial merchandise from self expressive art with regards to full protection under the First Amendment. In a recent 2006 ruling by the 2nd Circuit Court of Appeals, Mastrovinzenso v City of New York, they clarified this important point that was touched on in the Bery v N.Y.C. ruling of 1996. In this ruling the New York City licensing scheme was upheld to be constitutional as applied to a couple of original artist. Why? Because though the Artist were indeed doing one of a kind works of art and offering them for sale...the works of art were being done on T-Shirts and Hats. The Second Circuit Held that because these items had a dual purpose, both Artistic and functional/utilitarian, the works were not "purely" expressive and therefore did not rise to the FULL Protection of the First Amendment. As functional merchandise that contained artistic self expression its sale required a N.Y.C. business license because it was not purely expressive.

Now in an interesting twist to this Second Circuit ruling, I believe it was the 7th Circuit that was cited in my 9th Circuit ruling, the high Court granted full protection of the First Amendment to a person(s) making stained glass windows. Obviously functional, right?

The high court ruled that because the Artist was not selling the stained glass as a functional window, but as "Art for Art's sake", the Artists was entitled to the full protection of the First Amendment.

So, now you know. This is all about education, education, education..if we will ever save the Arts from commercialization in America. This kind of education must take place in the Federal Courts. I encourage my fellow Artists to stand up for your Constitutional Rights and remember that men and women have given and are giving their lives for these freedoms every single day.

As a Veteran of 3 years of military service to our country, I now choose to stand up for Artists so that they can bring a little more understanding and beauty into this troubled world.

A lot of people think I got into this for personal reasons. I got into this business of challenging horrible governmental policies that are commercializing and exploiting artists because I was a witness to the terrible shooting at Columbine High School. I'm fighting not for myself but to deliver a gift to the Children of America. The gift of Art, from the Children of Columbine.

Thanks again for the space to respond,

Steven C. White
Artist / Artist Advocate
winning rulings in;
White v Reno, Nv. 2002, U.S. District Court
White v Sparks, Nv. 2007, 9th Circuit Court

July 5, 2008 | Unregistered CommenterSteven C. White

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