A company which controls the marketing efforts of the image of Tiger Woods, the super star golfer, has sued Rich Rush, a painter of sporting scenes, for distributing editions of serigraphs and lithographs of Tiger Woods which was part of the painter's extensive collection called "The Masters of Augusta."

The issues, similar to those facing photographers who capture on film individual athletes participating in professional sporting events, concern the balancing of an artist's (or photographer's) freedom of expression and the ability to market or merchandise that expression, against the right of the individual to exploit and capitalize on the economic value of his or her own publicity rights, which can be considerable.

In this pending case in the Northern District of Ohio, suit was brought for violation of Tiger Woods' right of publicity through the use of his likeness, as well as trademark infringement for use of his name (which is a registered trademark).

The relief sought includes a permanent injunction prohibiting the marketing of the image, destruction of all remaining prints, profits from prior sales, treble damages, attorneys' fees and costs.

The case is presently in discovery.

I have always advised my photographer clients in these circumstances to request the consent of the athlete, which usually can be obtained for an appropriate fee or percentage of the revenue or profits generated.

The resulting product combines the talent of both parties - the image of the athlete and the creativity of the photographer.

Without consent, you run the very real risk that now faces Mr. Rush. As the old proverb says - better to be safe than sorry!