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).