There is a longstanding history of tension between local governments and street vendors. To be sure, areas such as the famous streets of SoHo in New York and the Santa Monica Promenade and Sunset Boulevard in Los Angeles are known for the "flair" of the vendors and artists who occupy their sidewalks. Indeed, many of us have been tempted with personalized caricatures and celebrity drawings, and undeniably have stopped, at least for a moment, to ogle at the escapades of break-dancing performers and silver-painted mimes, while visiting such areas.
However, while some may consider such street vendors unique and artistic, others, such as the police and local businesses who have to tackle the resulting congestion, peddling and crime, label street vendors as a nuisance. Thus, many cities have passed local ordinances requiring that street vendors first obtain a license or permit before being permitted to exploit their various talents. Such ordinances allow local officials to pick and choose which vendors are appropriate. Indeed, artist Steven White, who sells his personally painted nature scenes in a highly popular public square in Nevada, challenged a "preapproval ordinance" that he was subjected to, arguing that it violated his First Amendment right to free expression. The Ninth U.S. Circuit Court of Appeals agreed. In White v. City of Sparks, 2007 WL 2429380 (9th Cir. 2007), the commercial exploitation of original art was granted full protection under the First Amendment, a decision that could have a domino effect on trademark law as well.
Paintings are 'Inherently' Expressive
The dividing line that traditionally determines whether a certain type of "expression" will be given full protection under the First Amendment is whether such expression is for commercial gain. Under
Central Hudson Gas & Electric Corp. v. Public Service Comm'n., 447 U.S. 557 (1980), the Supreme Court held that "commercial speech" could be regulated so long as the regulation advanced an important governmental interest and was "viewpoint neutral" - i.e., cities cannot stop people from painting themselves silver and miming to a jukebox for money just because they find it personally offensive; there must be a legitimate reason for limiting the activity (i.e., street congestion, theft). Indeed, the Central Hudson test was given a loophole by the Gaudiya Vaishnava Socy. v. City and County of San Francisco (952 F.2d 1059 (1991)) case, a Ninth Circuit decision, which held that "message bearing" commercial merchandise, T-shirts in particular, would be afforded full protection under the First Amendment if it was "inextricably intertwined" with a "political, religious, philosophical, or ideological message."
Arguing compliance with the Gaudiya test, defendant City of Sparks in the Ninth Circuit's White case stated that the nature scenes painted by artist and street vendor White portrayed no "political, religious, philosophical or ideological message" and because the paintings were for sale, thus making them "commercial speech," the city could regulate White's activities. To the city, romantic sketches of rivers and mountains being sold on street corners did not contain the expressive messages warranting full protection.The Ninth Circuit disagreed. In fact, the Court held Gaudiya to be inapplicable because it applied to "visual art"-such as clothing and jewelry-not "inherently expressive" art, such as original paintings. The Court stated that "[a] painting may express a clear social position, as with Picasso's condemnation of the horrors of war in Guernica, or may express the artist's vision of movement and color, as with 'the unquestionably shielded painting of Jackson Pollock.'" To be sure, "[a]ny artist's original painting holds potential to 'affect public attitudes,' by spurring thoughtful reflection in and discussion among its viewers." Thus, the court held that, so long as it was the artist's creation, full First Amendment protection would be given, and the sale of such creations would not fall under commercial speech regulations.
Trademark Law Ramifications of White
The White decision raises the possibility that trademarks will mean a lot less to their owners. For instance, the Sixth U.S. Circuit Court of Appeals in ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003), allowed artist Rick Rush to paint and sell paintings of famed golfer Tiger Woods, which the plaintiff in this case argued was a violation of the trademark "Tiger Woods." Defendant argued that there were trademark rights in Woods' image because the notoriety of Woods himself was the reason why the paintings were being purchased. To be sure, it appeared as though Woods was unhappy with the way his image (or possibly his supernatural back swing) was being commercially exploited by Rush. However, the Sixth Circuit held that Rush was entitled to paint and sell Woods' famous image in just about any context, so long as the actual words "Tiger Woods" were not on the painting and there was some artistic purpose to the painting. The court stated that this was a right granted by the First Amendment.
The White decision, with its expansive interpretation of the First Amendment, suggests that the Ninth Circuit might take the lead and possibly expand even further the ETW Corp. decision of the Sixth Circuit. Indeed, it appears that so long as the painting is an original work of art, the subject matter of such art cannot be regulated, even if the subject matter has been trademarked. The Ninth Circuit in White was clear on its point that an original painting "always communicate[s] some idea or concept to those who view it" and that such message need not be obvious or even implicit. This would mean that trademarked items and trademarked subject matter, if painted and sold for profit, would be protected despite the possibility that it is the trademarked material itself and not the "talent" of the painter fueling the purchase of such art. Thus, artists can potentially capitalize upon the fame of their subject matter, as well as mass-produce it, without fear of violating trademark law.
White is a seminal decision as it now places the act of painting on the same legal platform as the act of speaking. Indeed, as the Ninth Circuit in White pointed out, "It is well-settled that a speaker's rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak." Thus, whether it be a depiction of Tiger Woods teeing up on the "links" of Pebble Beach, Michael Jackson moonwalking, or just someone on the street trying to paint your head atop a miniaturized sketch of your body, street vendors selling their art are here to stay.
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