# Etw Corporation v. Jireh Publishing, Inc.

> Court of Appeals for the Sixth Circuit · September 8, 2003 · 332 F.3d 915

URL: https://www.frixlaw.com/law-library/cases/9496145

## Case

- **Full name:** ETW CORPORATION, Plaintiff-Appellant, v. JIREH PUBLISHING, INC., Defendant-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** September 8, 2003
- **Citations:** 332 F.3d 915; 2003 WL 21414521
- **Precedential status:** Published
- **Opinion:** Dissent by Clay
- **Judges:** Siler, Clay, Graham
- **Cited by:** 143 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9496145

## How later opinions describe it (automated extraction)

- holding that the photographs in a collage were “combined to describe, in artistic form, a historic event in sports history and to convey a message about the significance of [Tiger] Woods’s achievement in that event”
- stating that the elements of a § 1125(a) false endorsement claim are similar to the elements of a state law right of publicity claim and therefore cases which address either type of claim would be instructive
- holding that an artist’s use of Tiger Wood’s image had artistic relevance to the underlying work, which was a panoramic painting of Woods’ victory at the 1997 Masters Tournament, titled The Masters of Augusta
- holding that the use of Tiger Woods’s name on the back of an envelope containing an artist’s depiction of Woods was purely descriptive because “Woods is mentioned only to describe the content of the print.”
- stating that “[t]he right of publicity is an intellectual property right of recent origin which has been defined as the inherent right of every human being to control the commercial use of his or identity”

## Opinion text

CLAY, Circuit Judge,
dissenting.
Genuine issues of material fact remain for trial as to the claims brought by Plaintiff, ETW Corporation, under the Lanham Act, 15 U.S.C. § 1114 and § 1125, and Ohio common law for trademark infringement, unfair competition, and dilution; therefore, I would reverse the district court’s judgment and remand the case for trial as to these claims. No genuine issue of material fact remains for trial that Defendant, Jireh Publishing, violated Plaintiffs right of publicity under Ohio common law; therefore, I would reverse the district court’s judgment on Plaintiffs right of publicity claim and remand with instructions that the district court enter summary judgment in favor of Plaintiff. For these reasons, I respectfully dissent from the majority opinion, and shall address Plaintiffs claims in an order somewhat different than that utilized by the majority.
*939 I. Trademark Claims Based on Defendant’s Unauthorized Use of the Unregistered Mark— § 43(a) of the Lanham Act, 15 U.S.C. § 1125 (a)
At the outset, it should be noted that the majority’s characterization of this claim as the “Unauthorized Use of the Likeness of Tiger Woods” is misleading. Such a characterization bolsters the majority’s unfounded position that Plaintiff is seeking protection under the Lanham Act for any and all images of Tiger Woods, but, indeed, such is not the case. Plaintiffs amended complaint squarely sets forth Defendant’s conduct to which Plaintiff takes issue — Defendant’s portrayal of Woods in his famous golf swing at the Masters Tournament in Augusta as set forth in Rush’s print. Plaintiff provided evidence that there was a “high incidence” of consumer confusion as to Woods being the origin or sponsor of The Masters of Augusta print by Rick Rush, thus demonstrating, at the very a least, that a question of fact remains for trial as to whether Woods used this image as a trademark and whether Defendant’s print infringed upon the mark. See Rock & Roll Hall of Fame & Museum, Inc. v. Gentile Prods., 134 F.3d 749, 753 (6th Cir.1998) (hereinafter “Rock & Roll Hall of Fame ” or “Rock & Roll ”).
The majority’s contention as set forth in footnote 5 of its opinion, that “Plaintiffs first amended complaint does not allege that Woods has used any specific image or likeness as a trademark,” misses the point. That is, Plaintiffs complaint expressly takes issue with Defendant’s unauthorized sale of Rush’s print depicting Woods, and Plaintiff has proffered evidence to show that consumers are confused as to Woods being the sponsor or origin of the print, thereby establishing, particularly for purposes of summary judgment, that the image of Woods in Rush’s print has been used as a trademark. The majority’s repeated disagreement with this point as set forth in footnote 6 of its opinion flies in the face of several propositions of law.
Section 1125(a), or § 43(a), of the Lan-ham Act (“the Act”) “makes illegal a broad array of rather amorphous practices that are commonly arranged under the loose rubric of ‘unfair competition.’ ” Sovereign Order of Saint John of Jerusalem, Inc. v. Grady, 119 F.3d 1236, 1242 (6th Cir.1997); see also Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 209 , 120 S.Ct. 1339 , 146 L.Ed.2d 182 (2000) (quoting 15 U.S.C. § 1125 (a)) (“In addition to protecting registered marks, the Lanham Act, in § 43(a), gives a producer a cause of action for the use by any person of ‘any word, term, name, symbol, or device, or any combination thereof ... which ... is likely to cause confusion ... as to the origin, sponsorship, or approval of his or her goods_’ ”). Section 1125(a) is the counterpart to section 1114 of the federal trademark infringement statute, where the former protects certain unregistered marks, while the latter protects registered marks. Id. However, “whether alleging infringement of a registered trademark, pursuant to 15 U.S.C. § 1114 (1), or infringement of an unregistered trademark, pursuant to 15 U.S.C. § 1125 (a)(1), it is clear that a plaintiff must show that it has actually used the designation at issue as a trademark, and that the defendant has also used the same or a similar designation, as a trademark.” Rock & Roll, 134 F.3d at 753 (emphasis in Rock & Roll). “[I]n order to be protected [or considered] as a valid trademark, a designation must create ‘a separate and distinct commercial impression, which ... performs the trademark function of identifying the source of the merchandise to the customers.’ ” Id. (quoting In re Chem. Dynamics, Inc., 839 F.2d 1569, 1571 (Fed.Cir.1988)).
To this end, “the plaintiff must establish a likelihood that the defendant’s designa *940 tion will be confused with the plaintiffs trademark, such that consumers are mistakenly led to believe that the defendant’s goods are produced or sponsored by the plaintiff.” Id. at 753-54. Indeed, whether a claim brought under § 1114 for infringement of a registered mark, or whether it is brought under § 1125(a) for infringement of an unregistered mark, the touchstone of the claim is “likelihood of confusion.” See Bird v. Parsons, 289 F.3d 865, 877 (6th Cir.2002) (“Generally speaking, the key question in cases where a plaintiff alleges trademark infringement and unfair competition is whether the defendant’s actions create a likelihood of confusion as to the origin of the parties’ goods or services.”); see also Paccar Inc. v. TeleScan Techs., L.L.C, 319 F.3d 243, 249 (6th Cir.2003) (“ ‘The touchstone of liability under § 1114 is whether the defendant’s use of the disputed mark is likely to cause confusion among consumers regarding the origin of the goods offered by the parties.’ ”) (quoting Daddy’s Junky Music Stores, Inc. v. Big Daddy’s Family Music Ctr., 109 F.3d 275, 280 (6th Cir.1997)); Sovereign Order of Saint John of Jerusalem, Inc., 119 F.3d at 1243 (noting that “the touchstone of a section 1125(a) unfair competition claim is whether the defendant’s actions are likely to cause confusion”) (citation and internal quotation marks omitted).
This Court has embraced the following eight-factor test for determining likelihood of confusion. These eight factors are not mechanically applied; rather, they simply serve as guidelines to aid in the Court’s analysis:
1. strength of plaintiffs mark;
2. relatedness of the goods;
3. similarity of the marks;
4. evidence of actual confusion;
5. marketing channels used;
6. likely degree of purchaser care;
7. defendant’s intent in selecting the mark;
8.likelihood of expansion of the product lines.
Landham v. Lewis Galoob Toys, Inc., 227 F.3d 619, 626-27 (6th Cir.2000) (“[These factors] ‘imply no mathematical precision, and a plaintiff need not show that all, or even most of the factors listed are present in any particular case to be successful’ ”) (quoting Wynn Oil Co. v. Thomas, 839 F.2d 1183, 1186 (6th Cir.1988)); see also Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir.1961) (espousing the eight-factor likelihood of confusion test).
The majority ignores this body of well established jurisprudence by holding that “as a general rule, a person’s image or likeness cannot function as a trademark.” Indeed, if a plaintiff alleging infringement in the unregistered mark of his image or likeness in the product of another brings forth evidence of consumer confusion, then the image or likeness of the plaintiff may very well be functioning “as a trademark” for purposes of § 1125(a), see Rock & Roll Hall of Fame, 134 F.3d at 753 , and a question of fact may be created as to whether the defendant’s unauthorized use of the mark infringed on the plaintiffs rights. See Tarrant Serv. Agency v. Am. Standard, Inc., 12 F.3d 609, 617 (6th Cir.1993) (holding that evidence of consumer confusion established a question of fact for the jury on the plaintiffs trademark infringement and unfair competition claims).
In support of its sweeping holding, the majority relies in part upon Pirone v. MacMillan, Inc., 894 F.2d 579 (2d Cir.1990); however, a close reading of Pirone does not support the majority’s position but instead follows the long line of cases establishing that a plaintiff may succeed on a claim under § 1125(a) for infringement of the unregistered mark of his likeness or image by bringing forth evidence of consumer confusion. To illustrate, in Pirone *941 the estate of the famous baseball player Babe Ruth brought suit against the manufacturer of a pocket calender bearing the photograph of Babe Ruth, among other famous baseball players, claiming trademark infringement under § 32 (registered mark) and § 43(a) (unregistered mark). See id. at 582. In discussing the plaintiffs claims made under § 43(a), the Second Circuit noted that claims under § 43(a) are broader than those made under § 32, inasmuch as they cover a broader array of violations. Id. The court went on to state that
the crucial determinant in an action for trademark infringement or unfair competition is whether there is any likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question. In order to be confused, a consumer need not believe that the Ruth estate actually produced the calender. The ‘public’s belief that the mark’s oumer sponsored or otherwise approved the use of the trademark satisfies the confusion requirement.
Id. at 584 (internal quotation marks and citations omitted; emphasis added). Because the plaintiff “failed to present a material issue of fact on the question of likelihood of consumer confusion,” the Second Circuit found that summary judgment on the plaintiffs § 43(a) claim was proper. Id. at 585. Thus, contrary to the majority’s abbreviated discussion of Pirone , the Second Circuit did not find that the plaintiffs claim in that case failed because trademark rights cannot be established in the likeness of an individual; rather, the plaintiffs claim fell prey to the defendant’s motion for summary judgment because no evidence of consumer confusion was presented to support the claim.
The majority also relies upon Rock & Roll Hall of Fame in support of its holding; however, as with Pirone, Rock & Roll Hall of Fame does not espouse the proposition that the majority claims. That is, contrary to the majority’s implication here, the Court in Rock & Roll Hall of Fame did not conclude that the plaintiffs § 43(a) claim for trademark infringement of the Museum’s building design failed because the Museum’s image or design could not function as a trademark. Instead, the Court in Rock & Roll Hall of Fame held that the plaintiffs claim failed because there was no evidence of consumer confusion so as to demonstrate that the Museum’s image had been used as a trademark. See 134 F.3d at 754 . Indeed, the majority found the lack of evidence regarding consumer confusion to be “pivotal” in reaching its conclusion. Id.
Finally, the majority cites to Estate of Elvis Presley v. Russen, 513 F.Supp. 1339 (D.N.J.1981) in support of its holding that as a general rule a person’s image or likeness cannot function as a trademark. As with the other cases upon which the majority relies, Presley does not stand for the proposition that a person’s likeness or image cannot function as a trademark; rather, the Presley court found that “the available evidence [did] not support” the plaintiffs proposition that “the likeness and image of Elvis Presley serve[d] as a service mark.” Id. at 1363-64 . In other words, if the plaintiff had proffered evidence to support its proposition, then its claim may very well have succeeded. Indeed, the court found that “there [was] sufficient evidence in the record” for the court to conclude that a certain image of Presley, coined by the court as the “Elvis Pose,” had acquired secondary meaning so as to be protectable as a service mark. Id. at 1365 .
Simply stated, contrary to the majority’s contention, the jurisprudence clearly indicates that a person’s image or likeness can function as a trademark as long as there is *942 evidence demonstrating that the likeness or image was used as a trademark; which is to say, the image can function as a trademark as long as there is evidence of consumer confusion as to the source of the merchandise upon which the image appears. See, e.g., Rock & Roll, 134 F.3d at 753 . And, significantly, in the matter at hand Plaintiff brought forth such evidence regarding the image of Woods portrayed in Rush’s print by way of an affidavit from Dr. Carl Block, President and CEO of Marketeam Associates, a national marketing and research firm. Dr. Block stated that a survey had been conducted regarding the public’s perception of Defendant’s poster in relation to Tiger Woods. Based on the results of the survey, Dr. Block concluded that “there is a high incidence of confusion among the relevant consuming universe concerning the affiliation, connection, approval or sponsorship between Tiger Woods and The Masters of Augusta print by Rick Rush” such that “there is an extremely high probability that members of the relevant consuming universe believe that Tiger Woods has an affiliation or connection with ... the print.” (J.A. at 311, Block Affidavit at ¶¶ 5-6.) Dr. Block also stated that the survey demonstrated that only 11% of respondents believed that Tiger Woods did not have an affiliation or connection with the poster, while fully 62% of respondents believed that Woods was affiliated or connected with the poster or had “approv[ed] or sponsored it.” (J.A. at 311, Block Aff. at ¶ 5.) Dr. Block characterized this as “one of the highest incidences of confusion that Marketeam has ever recorded in such surveys regarding whether or not a likelihood of confusion exists in a trademark dispute.” (J.A. at 211, Block Affidavit at ¶ 5.)
Inasmuch as Plaintiff proffered evidence of consumer confusion as to Woods’ affiliation with or sponsorship of the poster, Plaintiff proffered evidence that it has used this image of Tiger Woods “as a trademark.” See Rock & Roll Hall of Fame, 134 F.3d at 753-54 (noting that in order to demonstrate that it used a designation as a trademark, “the plaintiff must establish a likelihood that the defendant’s designation will be confused with the plaintiffs trademark, such that consumers are mistakenly led to believe that the defendant’s goods are produced or sponsored by the plaintiff’); see also restatement (ThiRd) Of Unfair Competition § 46 cmt. b, 537 (1995) (emphasis added) (“[I]f the defendant’s unauthorized use creates a false suggestion of endorsement or a likelihood of confusion as to source or sponsorship, liability may also be imposed for ... trademark or trade name infringement”). Thus, the district court erred in failing to inquire further into Plaintiffs § 43(a) claims by conducting the eight-factor test, and Plaintiff should be provided the opportunity to have a jury decide whether its § 43(a) claims are viable. See Pirone, 894 F.2d at 584 (noting that the eight-factor test for likelihood of confusion is normally a factual question for the jury); see also Tarrant Serv. Agency, 12 F.3d at 617 (holding that evidence of consumer confusion established a question of fact for the jury on the plaintiffs trademark infringement and unfair competition claims).
With that said, it is difficult to conceive how the majority arrives at its conclusion that Plaintiff “does not claim that a particular photograph of Woods has been consistently used on specific goods” but instead makes “a sweeping claim to trademark rights in every photograph and image of Woods.” As indicated in the outset of this discussion, Plaintiffs complaint specifically takes issue with the image of Woods as depicted in Rush’s Masters of Augusta print and, moreover, Plaintiff has come forward with strong evidence of consumer confusion to support its claim that this image of Woods has been used as a trademark for purposes of supporting its *943 § 43(a) claim. The majority’s failure to acknowledge the significance of this evidence constitutes a fatal flaw in its analysis because it is settled that “if the defendant’s unauthorized use creates a false suggestion of endorsement or a likelihood of confusion as to source or sponsorship, liability may also be imposed for ... trademark or trade name infringement.” Restatement (Third) Of Unfair Competition § 46 cmt. b, 537 (1995) (emphasis added); see also Bird, 289 F.3d at 877 (noting that “the key question in cases where a plaintiff alleges trademark infringement and unfair competition is whether the defendant’s actions create a likelihood of confusion as to the origin of the parties’ goods or services”).
Finally, as explained in the next section, even by adopting the Second Circuit’s balancing approach when considering a Lan-ham Act claim involving an artistic expression, Plaintiffs likelihood of confusion evidence should, and indeed must, be considered in deciding Plaintiffs claim for infringement of the unregistered mark. As the Second Circuit has also proclaimed, “[trademark protection is not lost simply because the alleging infringing use is in connection with an artistic expression.” Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ’g Group, Inc., 886 F.2d 490, 493 (2d Cir.1989) (alteration in Cliffs Notes) (quoting Silverman v. CBS Inc., 870 F.2d 40, 49 (2d Cir.1989)).
II. Lanham Act Unfair Competition & False Endorsement Claims— § 1125(a)
Regarding Plaintiffs claim for false endorsement, the majority concludes that “where the defendant has articulated a colorable claim that the use of a celebrity’s identity is protected by the First Amendment, the likelihood of confusion test is not appropriate because it fails to adequately consider the interests protected by the First Amendment.” In support of this conclusion, the majority relies upon the Second Circuit’s decision in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir.1989) and Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir.2002), and ultimately holds that under these cases, the Lanham Act is not applicable to Plaintiffs claim, thus obviating the need to address Plaintiffs evidence of consumer confusion. The majority misapplies the test set forth and applied in these cases, and thus reaches an erroneous result.
This dissent focuses on the majority’s misapplication of the Rogers balancing test and resulting erroneous conclusion; however, this dissent should not be interpreted as endorsing the application of the Rogers test to the facts of this case. Rather, the point made by the dissent is that even under the Rogers standard, questions of fact remain precluding summary judgment. This dissent also emphasizes that even relying solely on the eight-factor likelihood of confusion test as the district court did below — i.e., not employing any balancing test — questions of fact remain for trial on Plaintiffs § 43(a) claims inasmuch as there is evidence on the record of consumer confusion as to Woods’ sponsorship of Rush’s print, evidence that Woods has used the image portrayed in the print as a trademark, and evidence that, as a celebrity, Woods has property rights in his name and image. See, e.g., Parks v. LaFace Records, 329 F.3d 437 , 447 & n. 3 (6th Cir.2003); Rock & Roll, 134 F.3d at 753 .
This Court applied Rogers for the first time in Parks v. LaFace Records, 329 F.3d at 448 , which was a trademark case involving “a dispute over the name of a song.” In doing so, the Court specifically stated that it found the standard set forth in Rogers and its progeny to be the “best test” of those available “for balancing Defendants’ and the public’s interest in free *944 expression under the First Amendment against Parks’ and the public’s interest in enforcement of the Lanham Act” as to “the facts before [it].” Id. at 451-52. In other words, in Parks this Court applied the Rogers test for the first time in this circuit, but the Court limited the application to the facts of that case, which involved a song title. Id. at 458 (stating the application of the second prong of the Rogers test “in the context of using a celebrity’s name in the title of some artistic work”). Contrary to the assertions made by the majority in this case, the Parks court did not, as the majority does here, adopt Rogers wholesale as the law of this circuit in any trademark dispute involving an artistic expression. Rather, Parks applied Roger’s “to the facts before [it]” where like Rogers, Parks involved a title. Id. at 452 .
In Rogers and later in Mattel, the Second Circuit and the Ninth Circuit, respectively, were faced with § 1125(a) false endorsement claims as they specifically related to titles. As explained by the Rogers court, the fact that the claims were brought as to titles was significant in determining the scope of the Lanham Act to be applied. That is, in analyzing the challenge brought by the actress Ginger Rogers to the film entitled Ginger and Fred, the Second Circuit recognized that although
First Amendment concerns do not insulate titles of artistic works from all Lan-ham Act claims, such concerns must nonetheless inform our consideration of the scope of the Act as applied to claims involving such titles. Titles, like the artistic works they identify, are of a hybrid nature, combining artistic expression and commercial promotion. The title of a movie may be both an integral element of the film-maker’s expression as well as a significant means of marketing the film to the public. The artistic and commercial elements of titles are inextricably intertwined. Film-makers and authors frequently rely on wordplay, ambiguity, irony, and allusion in titling their works. Furthermore, their interest in freedom of artistic expression is shared by their audience. The subtleties of a title can enrich a reader’s or a viewer’s understanding of a work. Consumers of artistic works thus have a dual interest: They have an interest in not being misled and they also have an interest in enjoying the results of the author’s freedom of expression. For all of these reasons, the expressive element of titles requires more protection than the labeling of ordinary commercial products.
Rogers, 875 F.2d at 998 (emphasis added).
Upon recognizing the specific nature of titles as they relate to protection under the Lanham Act, the Second Circuit addressed Rogers’ contention that First Amendment concerns were implicated only where a title is so intimately related to the subject matter of a work that the author has no alternative means of expressing what the work is about. Id. The Second Circuit found that the “no alternative avenues” test “d[id] not sufficiently accommodate the public’s interest in free expression,” but also found that the district court’s rule “that the Lanham Act [was] inapplicable to all titles that can be considered artistic expression^] d[id] not sufficiently protect the public against flagrant deception.” Id. at 999 . As a result, the court crafted a balancing test and opined that “[w]e believe that in general the Act should be construed to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression.” Id.
In applying this test to Rogers’ claim, the Second Circuit first noted that the title “Ginger and Fred” contained “no explicit indication that Rogers [had] endorsed the film or had a role in producing it.” Id. at *945 1001 . The court went on to note that the survey evidence adduced by Rogers, even if validly assumed, “indicate[d] at most that some members of the public would draw the incorrect inference that Rogers had some involvement with the film[;]” however, “that risk of misunderstanding, not engendered by any overt claim in the title, [was] so outweighed by the interests in artistic expression as to preclude application of the Lanham Act.” Id. Thus, the court held that “the sponsorship and endorsement aspects of Rogers’ Lanham Act claim [for false endorsement] raise[d] no ‘genuine’ issue that requires, submission to the jury.” Id.
The majority in the case at hand recognizes that the Second Circuit affirmed the district court’s grant of summary judgment to Rogers, and also recognizes that the court considered Rogers’ survey evidence when seeking to strike the appropriate balance between the public interest in not being mislead and the public’s interest in free expression for purposes of determining whether summary judgment was proper. However, in applying the Rogers balancing test to facts if this case, the majority fails to consider Plaintiffs survey evidence of consumer confusion and fails to do so under the scope of the Lanham Act relevant to the artistic work at issue. 1 Instead, without any meaningful consideration whatsoever of Plaintiffs survey evidence, or for that matter any meaningful explanation of why Rush’s print has artistic relevance for purposes of conducting a balancing of interests of any significance, the majority simply concludes that “the presence of Woods’ image in Rush’s painting The Masters Of Augusta does have artistic relevance to the underlying work and that it does not explicitly mislead as to the source of the work.” Indeed, this is not the approach taken by the Second Circuit in Rogers , where the court specifically considered the survey evidence, and did so as to the specific form in which the false endorsement was made — a title to a motion picture, and found that although a factual dispute existed, it was not “genuine” for purposes of surviving summary judgment. See Rogers, 875 F.2d at 1001.
In response to this dissent, the majority merely set forth a single paragraph to its opinion claiming to take into account evidence of actual consumer confusion as balanced against Rush’s “artistic expression” for purposes of concluding that the risk of consumer misunderstanding is so outweighed by the interest in artistic expression that application of the Act is “precluded.” This single two-sentence paragraph fails to engage in any meaningful analysis of the balancing of the interests at hand, and particularly fails to account for the role of the eight-factor test in the Rogers balancing test. A significant inquiry into both prongs of the Rogers test is necessary when attempting to strike the appropriate balancing of interests, especially at the summary judgment stage, because questions of fact may be inappropriately decided in the absence any meaningful inquiry. See, e.g. Parks, 329 F.3d at 459 (remanding the case where issues of fact remained for trial as to the first prong, “the artistic relevance prong,” of the Rogers test). Indeed, this Court remanded the case in Parks because questions of fact remained for trial as to the first prong of the Rogers test thus preventing the Court from balancing any interests as a matter of law at summary judgment. Id.
*946 The majority’s contention that this case is like Rogers because the survey evidence merely indicates that some members of the public would draw the incorrect inference that Woods had some connection with Rush’s print fails to account for the differences in the type of survey evidence in this case as opposed to that in Rogers . In Rogers the survey evidence indicated that only about 14% of the consumers polled indicated that Ginger Rogers was “involved in any way with making the film[;]” however, in this case, 62% of the consumers polled indicated that they believed that Woods had an “affiliation” or “connection” with Rush’s print, or “approved” or “sponsored” the print. See 875 F.2d at 1001 n. 8. And of particular significance, the Rogers court found that such survey evidence failed to create a genuine issue of fact for the jury. Here, on the other hand, considering the stark difference in actual consumer confusion between this case and Rogers , a genuine issue of fact has been demonstrated for purposes of allowing this matter to proceed. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986) (noting that an issue of fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmovant). The majority’s misleading and wholesale use of language from Rogers cannot serve to compel the outcome it argues for where the evidence and the facts involved differ so significantly.
As in Rogers , the artistic expression at issue in Mattel, the case from the Ninth Circuit relied upon by the majority, involved a title. See Mattel, 296 F.3d at 898 . Specifically, the plaintiff, Mattel, Inc., creator of the Barbie doll, filed suit against MCA Records, Inc., along with others who produced, marketed, and sold the song “Barbie Girl,” alleging trademark infringement, among other things. In addressing the plaintiffs claim, the Ninth Circuit first noted that “[o]ur likelihood-of-confusion test generally strikes a comfortable balance between the trademark owner’s property rights and the public’s expressive interests.” Id. at 900 (citation omitted). However, the court went on to recognize that “when a trademark owner asserts a right to control how we express ourselves — when we’d find it difficult to describe the product any other way (as in the case of aspirin), or when the mark (like Rolls Royce) has taken on an expressive meaning apart from its source-identifying function — applying the traditional test fails to account for the full weight of the public’s interest in free expression.” Id. Said differently, “the trademark owner does not have the right to control public discourse whenever the public imbues his mark with a meaning beyond its source-identifying function.” Id. (citation omitted).
With this in mind, the Mattel court then looked to Rogers and the Second Circuit’s analysis therein. Mattel, 296 F.3d at 901 . The Ninth Circuit noted that the result in Rogers may have been different if, for example, “a pair of dancing shoes had been labeled Ginger and Fred, [because] a dancer might have suspected that Rogers was associated with the shoes (or at least one of them), just as Michael Jordan has endorsed Nike sneakers that claim to fly through the air.” Id. “But,” the court went on to note, “Ginger and Fred was not a brand of shoe; it was the title of a movie and, for the reasons explained by the Second Circuit, deserved to be treated differently.” Id. at 901-02. Thus, the court expressly noted the nature of the artistic expression, a title, and adopted the Rogers standard that “literary titles do not violate the Lanham Act ‘unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.’ ” Id. at 902 (quoting Rogers, 875 F.2d at 999 (footnote omitted)). In con- *947 eluding that “MCA’s use of Barbie [was] not an infringement of Mattel’s trademark[,]” through the application of the Rogers balancing test, the court expressly-found that “[t]he song title does not explicitly mislead as to source of the work; it does not, explicitly or otherwise, suggest that it was produced by Mattel. The only indication that Mattel might be associated with the song is the use of Barbie in the title; if this were enough to satisfy [the second] prong of the Rogers test, it would render Rogers a nullity.” Id. (emphasis .in Mattel).
As indicated, the majority in the instant case relies in part upon Mattel when concluding that Plaintiffs false endorsement claim fails because the presence of Woods’ image in Rush’s print has artistic relevance and does not explicitly mislead under the Rogers balancing test. However, the majority fails to consider the distinction set forth in Mattel — that the result in Rogers may have been different if, for example, “a pair of dancing shoes had been labeled Ginger and Fred, [because] a dancer might have suspected that Rogers was associated with the shoes (or at least one of them), just as Michael Jordan has endorsed Nike sneakers that claim to fly through the air.” Id. Indeed, the image of Woods holding his famous golf swing at the Masters, as nearly precisely portrayed in the poster sold by Nike by way of Plaintiffs authorization, may have mislead a sports enthusiast or golfer to believe that Woods was associated with Rush’s print. And the survey evidence strongly indicates that such is the case. (J.A. at 311, Block Affidavit at ¶¶ 5-6.) (“[T]here is an extremely high probability that members of the relevant consuming universe believe that Tiger Woods has an affiliation or connection with ... the print.”). As a result, this case is distinguishable from Mattel because Plaintiff has brought forth evidence of a high degree of consumer confusion.
In response to this dissent, the majority added what appears as footnote 11 of its opinion stating, among other things, that it fails to see the significance of the comment made in Mattel that the result in Rogers may have been different if a pair of dancing shoes had been labeled Ginger and Fred, inasmuch as “Woods’s image in Rush’s print is not used to identify a product.” The “product” in this case is Rush’s print, and Rush prominently depicts Woods holding his swing at the Masters Tournament in the print, entitled The Masters of Augusta, such that the evidence indicates that consumers believe that Woods sponsored or approved of the print.
While it is true that Rogers and Mattel employ a balancing test as opposed to the traditional eight-factor likelihood of confusion test set forth for trademark and unfair competition claims, these cases do not stand for the proposition that evidence of consumer confusion should be totally ignored in seeking to strike the appropriate balance between the public interest in free expression and the public interest in not being mislead. The Rogers court considered the survey evidence in striking the appropriate balance in that case, and thus the survey evidence should have been considered by the majority in this case, particularly where the expression at issue involves not just a title with no apparent connection to the product, but rather the total persona and embodiment of Woods in a pose closely associated with his status as a famous golfer which has been sold for commercial gain in the past. See Rogers, 875 F.2d at 1001 (concluding that the survey evidence did not raise a “genuine” issue of material fact for trial as to the plaintiffs false endorsement claim, particularly where the “title ‘Ginger and Fred’ contained] no explicit indication that Rogers endorsed the film or had a role in producing it)”; see also Mattel, 296 F.3d at *948 902 (holding that summary judgment in favor of the defendants was appropriate because the “only indication that Mattel might be associated with the song [was] the use of Barbie in the title” — i.e., there was no evidence of likelihood of confusion) (emphasis in original).
The majority’s failure to meaningfully consider Plaintiffs survey evidence is especially questionable in light of its citation and reliance upon Cliffs Notes, Inc. v. Bantam Doubleday Dell Publishing Group, Inc., 886 F.2d 490 (2d Cir.1989). The Second Circuit decided Cliffs Notes shortly after deciding Rogers and, while recognizing that Rogers specifically involved a challenge to a title, found that the Rogers balancing test nonetheless applied to the parody at issue. Id. at 495. The court held that “the Rogers balancing approach is generally applicable to Lanham Act claims against works of artistic expression, a category that includes parody. This approach takes into account the ultimate test in trademark law, namely, the likelihood of confusion as to source of the goods in question.” Id. (citations and internal quotation marks omitted; emphasis added). In a footnote, the court explained that where the challenged work is one involving artistic expression, “the Polaroid factors [the eight-factor test] should be applied with proper weight given to First Amendment considerations....” Id. at 495 n. 3. In other words, in Cliffs Notes the Second Circuit made clear that when applying the Rogers balancing test — weighing the public interest in avoiding consumer confusion against the public interest in free expression — the eight-factor likelihood of confusion test and the evidence associated therewith, is to be considered in the balance when determining the weight to be afforded the public interest in avoiding consumer confusion. See id. at 495 & n. 3.
The majority claims in footnote 12 of its opinion that the dissent’s “insistence on applying the likelihood of confusion test appears untenable in light of Parks.” However, in light of the Second Circuit’s instruction in Cliffs Notes, that evidence associated with the eight-factor likelihood of confusion test is to be considered when determining the public interest in avoiding consumer confusion under the Rogers balancing test, it is the majority’s “insistence” in rejecting evidence of consumer confusion that “appears untenable.” See Cliffs Notes, 886 F.2d at 495 n. 3. And, in light of the express language of Parks , the majority’s position not only “appears untenable” but is completely unfounded. The Parks court recognized that Rogers qualified its holding in stating that “if the title of the work is artistically relevant to its content, there is no violation of the Lanham Act unless the ‘title explicitly misleads as to the source of or the content of the work.’ ” Parks, 329 F.3d at 458 (quoting Rogers, 875 F.2d at 999 ) (emphasis in Parks). Thus, Parks acknowledged that evidence of the likelihood of confusion must be considered for purposes of determining whether the expression at issue misleads the public as to the source of the work. See id. If the evidence establishes that the expression misleads the public as to the source of the work, then the balance likely weighs against the public interest in free expression. Id. Simply stated, in order to conduct any type of meaningful balance, the Court must consider evidence under both prongs of the Rogers test, and evidence of the likelihood of confusion as set forth in the eight-factor test is to be considered under the “misleading prong,” as characterized by Parks. See id.; see also Cliffs Notes, 886 F.2d at 495 n. 3.
In the matter at hand, however, the majority completely eschews the eight-factor test and the evidence associated therewith when applying the Rogers balancing test. Thus, even if the majority is correct in its decision to broadly adopt the Rogers *949 balancing test as the law of this circuit in any case where a false endorsement or trademark claim is made against a work involving an artistic expression, the majority erroneously applies the balancing test by simply abandoning the considerations and evidence associated with the eight-factor likelihood of confusion test. In other words, the majority’s approach in this case not only adopts a standard that has never been used in this fashion by our circuit, but misapplies the standard, thereby leaving this circuit without proper guidance. As indicated, supra, the majority’s single-sentence attempt at balancing of the interests falls woefully short of any meaningful consideration of the matter.
Even under the Rogers standard, it is necessary for this case to be remanded on the issue of Plaintiffs false endorsement claim since questions of fact remain as to the degree of consumer confusion associated with Rush’s print and Woods’ endorsement thereof. To hold otherwise not only runs counter to the approach espoused in Rogers and its progeny, but to the express word of Congress: that a plaintiff may prevail on a Lanham Act claim if he can prove that the use in commerce of the trademark “in connection with goods or services” is “likely to cause confusion, to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.... ” 15 U.S.C. § 1125 (a)(1)(A) (emphasis added). This is not to say that the ultimate outcome here would necessarily be a favorable one for Plaintiff; however, a jury should be able to make that decision after hearing all of the evidence presented by Plaintiff, as opposed to the majority’s truncated and abbreviated approach which fails to engage in any meaningful consideration of pertinent and relevant evidence of consumer confusion, and fails to engage in any significant balancing of the interests.
III. Trademark Claims Based on the Unauthorized Use of the Registered Mark— § 32 of the Lanham Act, 15 U.S.C. § 1114
Plaintiff brought suit against Defendant under § 32 for infringement of Plaintiffs registered mark, “TIGER WOODS.” The mark appears on the back of the envelope containing Rush’s print as well as in the narrative description of the print. The district court found that because Plaintiff failed to demonstrate that Defendant’s image of Woods was an infringing use, Defendant’s use of the registered mark amounted to a “fair use” under 15 U.S.C. § 1115 (b). The majority makes a similar conclusion that Defendant’s use of the registered mark amounts to a fair use, but does so on the basis that the work upon which the registered mark appears or accompanies is an artistic expression. Whether following the reasoning of the district court or the majority, the result is shortsighted because it assumes that the underlying work upon which the registered mark appears is not an infringing use.
As explained in the above sections, Plaintiff brought forth evidence of actual consumer confusion in this case sufficient to create a genuine issue of material fact for trial as to whether the prints upon which the registered mark appears or accompanies is an infringing use of the unregistered mark under § 43(a). Indeed, the fatal flaw in the majority’s outcome as to Plaintiffs claims brought under § 43(a) is its failure to consider the evidence of actual consumer confusion proffered by Plaintiff, or any of the other factors looked to when determining consumer confusion. Thus, to conclude that Defendant’s use of the registered mark is a fair use because the underlying work is not an infringing *950 use is erroneous. Contrary to the majority’s contention in footnote 4 of its opinion, this dissent does not “misunderstand” the majority’s holding that Plaintiffs claim on this issue fails because Defendant’s use of the registered mark was a fair use. The point made here is that the majority erroneously bases its fair use holding on its contention that the item upon which the mark appears, Rush’s print, is not itself an infringing use.
The proper approach is to look at Defendant’s use of the registered mark in the context of evidence of consumer confusion in order to determine whether the fair use doctrine can be applicable. See Paccar Inc. v. TeleScan Techs., L.L.C., 319 F.3d 243, 255-56 (6th Cir.2003) (noting that “a finding of a likelihood of confusion forecloses a fair use defense”) (citations omitted). Once again, the majority fails to engage in any meaningful inquiry into consumer confusion and instead simply concludes that because Defendant’s print is an artistic expression, the use of the registered mark in association therewith constitutes a permissible fair use under the Act. This approach is in contravention to the application of the fair use doctrine and § 32 of the Act. See id. at 249, 255-56.
Thus, as with Plaintiffs claims brought under § 43(a) for infringement of the unregistered mark, the jury should be allowed to hear evidence as to the eight factors employed when ascertaining a likelihood of consumer confusion, and this is true even if a balancing approach is used. See, e.g., Rogers, 875 F.2d at 999 . Furthermore, even assuming the majority to be correct in its notation that Plaintiffs survey evidence of actual confusion was limited to the print itself and not the envelope or narrative accompanying the print, thus apparently leaving the fourth factor without evidentiary support, this still does nothing to change the fact that the remaining factors should be looked to for a proper determination of whether consumer confusion exists. See Wynn Oil Co. v. Am. Way Serv. Corp., 943 F.2d 595, 604 (6th Cir.1991) (finding that a lack of actual consumer confusion is not fatal to a § 32 claim where the remaining factors as a whole demonstrated consumer confusion). It should be pointed out that the majority’s contention, as set forth in footnote 4 of its opinion, that the dissent inappropriately discusses evidence of actual consumer confusion in reference'to Plaintiffs claim for infringement of the registered mark, is baffling and simply wrong. The point being made here is that even assuming the that the evidence of actual consumer confusion does not apply to Plaintiffs claim under § 32, this does nothing to change the fact that the other seven factors specific to the likelihood of confusion test should be examined, particularly at the summary judgment stage. See id.
IV. Dilution of the Mark under 15 U.S.C. § 1125
In Count II of its amended complaint, Plaintiff alleged dilution of the registered mark “TIGER WOODS” in violation of section 43(c) of the Act, 15 U.S.C. § 1125 (c). The district court failed to engage in any independent analysis of Plaintiffs dilution claim, and instead simply found that the dilution claim fell prey to summary judgment for the same reasons that Plaintiffs trademark claims fell prey to summary judgment. See ETW Corp. v. Jireh Publ’g, Inc., 99 F.Supp.2d 829, 834 (N.D.Ohio 2000). The majority likewise fails to engage in any independent analysis and simply concludes in footnote 7 of its opinion that “since Woods’s likeness does not function as a trademark which is subject to protection under the Lanham Act, it follows that a dilution claim does not lie.” Aside from its erroneous conclusion that Plaintiff has not brought forth evidence that Woods’ image as portrayed in the *951 print functions as a trademark, the majority’s conclusion in this regard is perplexing and legally incorrect inasmuch as Plaintiff based its dilution claim on the registered trademark. In addition, although it is true that “fair use” of a registered mark precludes an action for dilution under 15 U.S.C. § 1125 (c)(4)(A), as stated in Part III of this dissent, the majority erroneously concludes that Defendant’s use of the registered mark is a “fair use” inasmuch as the majority completely fails to consider evidence of consumer confusion. Thus, the majority’s “short shrift given to [Plaintiffs] dilution claim[ ]” cannot carry the day. Kellogg Co. v. Exxon Corp., 209 F.3d 562, 576 (6th Cir.2000); see also Moseley v. v. Secret Catalogue, Inc., 537 U.S. 418 , 123 S.Ct. 1115, 1119-122 , 155 L.Ed.2d 1 (2003) (finding that a claim for dilution may stand even though the plaintiffs claim for trademark infringement was not successful).
The Lanham Act, as amended by the Federal Trademark Dilution Act of 1995, defines the term “dilution” as “the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of— (1) competition between the owner of the famous mark and other parties, or (2) likelihood of confusion, mistake, or deception.” 15 U.S.C. § 1127 (emphasis added). This Court has identified factors that a plaintiff must fulfill in order to succeed on a federal dilution claim, “ ‘(1) the senior mark must be famous; (2) it must be distinctive; (3) the junior use must be a commercial use in commerce; (4) it must begin after the senior mark has become famous; and (5) it must cause dilution of the distinctive quality of the senior mark.’ ” Kellogg, 209 F.3d at 577 (quoting Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208, 215 (2d Cir.1999)). The Supreme Court recently made clear that in order to demonstrate dilution, the plaintiff must proffer objective evidence of actual dilution, “but that does not mean that the consequences of dilution, such as actual loss of sales or profits, must also be proved.” Moseley, 123 S.Ct. at 1124 . Inasmuch as Plaintiff in the case at hand has brought forward evidence on each of these five elements of a federal dilution claim, the jury should be allowed to consider this claim as well.
Y. Ohio Common Law Right of Publicity Claim
The majority makes a somewhat disjointed holding regarding Plaintiffs right of publicity claim. It first concludes that, under the rule of the Restatement, “Rush’s work has substantial informational and creative content which outweighs any adverse effect on ETW’s [Plaintiffs] market and the Rush’s work does not violate Woods’s right of publicity.” Then, the majority appears to engage in a separate analysis or balancing of the interests under the law of various circuits when it takes into account the degree of First Amendment protection that should be afforded Rush’s print against Woods’ “intellectual property right” in order to conclude that “[permitting Woods’ right of publicity to trump Rush’s right of freedom of expression would extinguish Rush’s right to profit from his creative enterprise.” Finally, engaging in yet a separate analysis under the “transformative effects test” pronounced by the California Supreme Court, the majority concludes that “[b]e-cause Rush’s work has substantial trans-formative elements, it is entitled to the full protection of the First Amendment. In this case, we find that Woods’s right of publicity must yield to the First Amendment.” Thus, it appears that the majority engages in three separate analyses, and arrives at three separate holdings, although all of which reach the same result.
The majority’s analysis not only fails in its disjointed approach but in its outcome *952 as well. The approach best suited for addressing Plaintiffs right of publicity claim in this ease is that taken by the California Supreme Court in Comedy III Productions v. Gary Saderup, Inc., 25 Cal.4th 387, 106 Cal.Rptr.2d 126 , 21 P.3d 797 (2001). This is so because the Court in Comedy III took account of a celebrity’s right of publicity and the principles of the right in general, as balanced against competing First Amendment concerns, in arriving at a test for purposes of adjudicating a case that is nearly on all fours with the matter at hand. This approach takes into account all of the competing interests while allowing for a single well-determined outcome that provides guidance and adds to the jurisprudence as a whole. Before applying the Comedy III approach to the facts of this case, it is useful to review the background of the birth of the right of publicity, the considerations embodied in the right, and the competing First Amendment interests in freedom of expression.
A. Background of the Right of Publicity
The right of publicity was born out of the common law right to privacy 2 when Circuit Judge Jerome Frank explicitly recognized the right of publicity as an independent action in Haelan Laboratories, Inc. v. Topps Chewing Gum, 202 F.2d 866, 868 (2d Cir.1953). There, Judge Frank opined that
in addition to and independent of that right of privacy ..., a man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture, and that such a grant may validly be made ‘in gross,’ i.e., without an accompanying transfer of a business or of anything else. Whether it be labelled a ‘property’ right is immaterial; for here, as often elsewhere, the tag ‘property’ simply symbolizes the fact that courts enforce a claim which has pecuniary worth.
This right might be called a ‘right of publicity.’ For it is common knowledge that many prominent persons (especially actors and ball-players), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways. The right of publicity would usually yield them no money unless it could be made the subject of an exclusive grant which barred any other advertiser from using their pictures.
Id.; see also Restatement (Third) Of Unfair Competition § 46 cmt. b, 529 (1995) (noting the origins behind the right of publicity, and the historical connection between publicity rights and the right to privacy). Up until the time that Judge Frank labeled what he viewed as the right to control commercial use of human identity as the “right of publicity,” the law “seemed unable to accommodate the claims of those whose identity was already public” — i.e, the famous. See Mocarthy, *953 The Rights Of Publicity And PRIVACY § 1:7 (2d ed.2000). In other words, until the right of publicity was recognized, it appeared counterintuitive for a famous individual to base his claim that his identity was being used commercially without permission on the right of privacy. The right to privacy is premised upon the right to “left alone,” and the famous person had already become well known commercially. However, it was the commercial nature of the person’s identity which was precisely at issue; that is, it was not the desire to be left alone, but the desire to control the use of and be compensated for the use of one’s persona. See id. And “thus was born the concept of a property right in the commercial value of every person’s identity.” Id. (emphasis in original)
Although the right of publicity grew out of the right of privacy, the right of publicity has within it characteristics of other rights such that it has been described as a ‘“sui generis mixture of personal rights, property rights, and rights under unfair competition.’ ” See id. (quoting S.J. Hoffman, Limitations on the Right of Publicity, 28 Bull. Copyright Soc’y 111, 112 (1980)). In addition, principles from various other areas of the law have been looked to and borrowed from when deciding right of publicity matters such as the law of copyright, trademark, and misappropriation. See id. Because of its inception in the law of privacy, and because of the various legal principles from other areas incorporated within it, the right of publicity remains a cause of action wherein the law is far from settled.
That notwithstanding, since Haelan, “[t]he right of a person, whether or not termed ‘right of publicity,’ to control the commercial value and exploitation of his or her name and likeness has received wide recognition by the courts.” Estate of Elvis Presley v. Russen, 513 F.Supp. 1339 , 1353 n. 6 (D.N.J.1981) (collecting cases). This Court has spoken on the right of publicity as follows:
The right of publicity has developed to protect the commercial interest of celebrities in their identities. The theory of the right is that a celebrity’s identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identity. In Memphis Development Foundation v. Factors Etc., Inc., 616 F.2d 956 (6th Cir.1980), we stated: “The famous have an exclusive legal right during life to control and profit from the commercial use of their name and personality.” Id. at 957 .
Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831 , 835 (6th Cir.1983) (analyzing right to publicity claim brought under Michigan common law). However, it should also be noted that other courts and commentators as well have found that “non-celebrities should also be permitted to recover upon proof that the appropriated identity possessed commercial value.” Restatement, supra § 46 cmt. d, 538; see MCCARTHY, supra § 4:3 (“[T]he basic possession of a right of publicity should have nothing to do with ‘celebrity’ status. Rather, ‘celebrity’ status will only be relevant to the economic value of a plaintiffs identity and persona.”) (footnote omitted); Roberta Rosenthal Kwall, The Right of Publicity v. The First Amendment: A Property .and Liability Rule Analysis, 70 Ind. L.J. 47 , 55-56 (1994) (noting that “the right of publicity has the potential for safeguarding from unauthorized use any marketable and publicly recognizable attribute of any individual, regardless of whether that person is a celebrity”) (footnote omitted); see also Vinci v. Am. Can Co., 9 Ohio St.3d 98 , 459 N.E.2d 507, 510 (1984) (finding that “the degree of notoriety” is relevant to damages rather than liability).
*954 At the present time, a majority of states recognize a right of publicity through common law, by statute, or both. See MCCARTHY, supra § 6:3 (noting that “at the time of this writing, under either statute or common law, the right of publicity is recognized as the law of twenty-eight states”); Restatement, supra § 46 statutory note (listing California, Florida, Kentucky, Massachusetts, Nebraska, Nevada, New York, Oklahoma, Rhode Island, Tennessee, Texas, Virginia, and Wisconsin as those states recognizing a statutory right of publicity). Ohio recognizes the right of publicity as a part of the state’s common law, see Zacchini v. Scripps-Howard Broad. Co., 47 Ohio St.2d 224 , 351 N.E.2d 454 (1976), rev’d on other grounds, 433 U.S. 562, 572 , 97 S.Ct. 2849 , 53 L.Ed.2d 965 (1977), and has recently codified that right. 3 See Ohio Rev. Code § 2741.01 and § 2741.02 (defining “persona” to mean “an individual’s name, voice, signature, photograph, image, likeness, or distinctive appearance, if any of these aspects have commercial” “value;” and making the unauthorized use of an individual’s persona for a commercial purpose during the individual’s lifetime or for a period of sixty years after the individual’s death, a violation of the statute).
Although the wide recognition of the right of publicity among the states is a clear indication of its acceptance in the jurisprudence of society today, the differences between the various state statutes has led to confusion such that there is a large body of opinion advocating that a uniform preemptive federal law be adopted. See Symposium, Rights of Publicity: An In-Depth Analysis of the New Legislative Proposal to Congress, 16 Cardozo Arts & Ent. L.J. 209 , 210 (1998) (“[O]ur Task Force has ... initiated a discussion aimed at producing its own federal right of publicity statute.... The subcommittee generally believes that a uniform body of law is desirable in this area, compared to the patchwork quilt with which the people of the United States are now afflicted.”)(comments of Steven M. Getzoff, then Chair of the American Bar Association Joint Task Force on federalizing the right of publicity); see also Alice Haemmerli, Whose Who? The Case for a Kantian Right of Publicity, 49 Duke L.J. 383 , 477 (1999) (recognizing that “[tjhere appears to be a general consensus that a uniform right of publicity is sorely needed,” and that “[i]t also appears that most advocates of uniformity believe that preemptive federal law, rather than a uniform code or model state statutes, would more readily achieve that goal”).
Aside from the confusing development of the right of publicity, and aside from the many differences associated with the various state statutes in effect, the point of confusion most associated with the right of publicity law is its interplay with the First Amendment. Each doctrine advances its own set of societal interests which often are in tension with one another. Those societal interests advanced by the right of publicity have been suggested to be that of “fostering creativity, safeguarding the individual’s enjoyment of the fruits of her labors, preventing consumer deception, and preventing unjust enrichment.” Roberta Rosenthal Kwall, The Right of Publicity v. The First Amendment: A Property and Liability Rule Analysis, 70 Ind. L.J. 47 , 54 (1994) (footnotes omitted); see also Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 Calif. L.Rev. 127, 178-79 (1993) (suggesting that the “main justifica *955 tions” for the right of publicity are “moral arguments” (the right of individuals to reap the fruits of their labors)); “economic arguments” (needed incentive to stimulate creative growth); and “consumer protection” (protects consumers from deception and related marketplace harms). Two of the most frequently cited justifications for First Amendment free speech guarantees in this regard are the advancement of knowledge and search for the truth by fostering a free marketplace of ideas necessary to a democratic society, as well as the fulfillment of the human need for self-expression. Id. at 65-66 . The tension between these interests is self-evident: while we want a free marketplace of ideas and expression, we wish to insure that any commercial value gained from that expression is not unjustly obtained through another’s labors. See Zacchini, 438 U.S. at 576, 97 S.Ct. 2849 (“No social purpose is served by having the defendant [in a right of publicity case] get free some aspect of the plaintiff that would have market value and for which he would normally pay.”).
Measures aimed at striking the appropriate balance between these competing interests have been the subject of much legal commentary. See, e.g., Haemmerli, supra at 383-84 (proposing to balance the right of publicity as an autonomy-based property right and the First Amendment values of freedom of expression); Kwall, supra at 48, 63-113 (exposing the “massive confusion” surrounding the conflict between the right of publicity and the First Amendment, while proposing to resolve the conflict by applying a property and liability rule framework). Yet another commentator has expressed concern that the right of publicity frustrates the principles behind the First Amendment. See Madow, supra at 127 (arguing that “private, centralized ownership and control of celebrity images poses a more serious threat to cultural pluralism and self-determination than is sometimes realized”). The argument goes that as a society, we freely monitor the “comings and goings, missteps and heartbreaks” of celebrities, along with attempting to copy or emulate “their mannerisms, their styles, their modes of conversation and their modes of consumption;” however, “[b]y virtue of what is now widely known as the ‘right of publicity,’ the ‘commercial’ value of a celebrity’s name, likeness, and other identifying characteristics is her private property, which she may enjoy and exploit, transfer and bequeath, as she alone thinks best.” Id. at 128,130 (footnotes omitted). This, it is maintained, leads to a potential right of censorship on the part of the celebrity thereby “limiting] the expressive and communicative opportunities of the rest of us.” Id. at 145-46.
Despite the various commentary and scholarship assessing the virtues and drawbacks to the right of publicity when compared to First Amendment principles, the fact remains that the right of publicity is an accepted right and striking the balance between an individual’s right of publicity against the speaker’s First Amendment right is not an easy one. Bearing in mind the principles justifying the two rights, it is clear why Woods’ right of publicity does not bow to Defendant’s First Amendment rights in this case.
B. Woods’ Right of Publicity Claim in this Case
Zacchini v. Scripps-Howard Broadcasting Company is the sole case from the Supreme Court to directly address the right of publicity, and the case came to the Supreme Court by way of certiorari from the Ohio Supreme Court under Ohio common law. See Zacchini, 47 Ohio St.2d 224 , 351 N.E.2d 454 (1976), rev’d on other grounds, 433 U.S. 562, 572 , 97 S.Ct. 2849 , 53 L.Ed.2d 965 (1977). The plaintiff, Zac-chini, was the performer of a live human *956 cannonball act who subsequently sued a television station that had videotaped and broadcast his entire performance without his consent. See 433 U.S. at 563-64 , 97 S.Ct. 2849 . The Supreme Court found in favor of Zacchini, holding that the First Amendment did not protect the television station against a right of publicity claim under Ohio common law. Id. at 565-66 , 97 S.Ct. 2849 . The Court explained that the enforcement of the right of publicity claim was not at odds with the First Amendment inasmuch as “the rationale for [protecting the right of publicity] is the straightforward one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay.” Id. at 576 , 97 S.Ct. 2849 .
Indeed, since Zacchini, “[t]he right of publicity has often been invoked in the context of commercial speech when the appropriation of a celebrity likeness creates a false and misleading impression that the celebrity is endorsing a product.” See Comedy III Prods., Inc. v. Saderup, Inc., 25 Cal.4th 387 , 106 Cal.Rptr.2d 126 , 21 P.3d 797, 802 (2001) (citing Waits v. FritoLay, Inc. 978 F.2d 1093 (9th Cir.1992); Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir.1988)). “Because the First Amendment does not protect false and misleading commercial speech, and because even non-misleading commercial speech is generally subject to somewhat lesser First Amendment protection, see Central Hudson Gas & Elec. Corp. v. Pub. Serv. Com’n, 447 U.S. 557 , 563-64 & 566, 100 S.Ct. 2343 , 65 L.Ed.2d 341 (1980), the right of publicity often trumps the right of advertisers to make use of celebrity figures.” Comedy III, 106 Cal.Rptr.2d 126 , 21 P.3d at 802 . In this case, to the extent that the district court was correct in characterizing Defendant’s prints as expressive works and not as commercial products, even though Defendant was selling the prints for financial gain, the issue becomes what degree of First Amendment protection should be afforded to Defendant’s expressive work.
In answering this question, one must look beyond Zacchini inasmuch as Zacchi-ni has been criticized as being very “narrowly drawn” in that it involved the wholesale reproduction of a live “entire act,” which is quite distinguishable from the unauthorized use of a person’s identity, particularly when the unauthorized use is in the form of an expressive work, as in the matter at hand. See Mccaethy, supra at § 8:27 (recognizing that “while the Zacchini majority and dissenting opinions have been picked apart word by word by the commentators, no clear message emerges and no general rule is discernible by which to predict the result of conflicts between the right of publicity and the First Amendment.”) With that in mind, guidance is provided by the California Supreme Court because it has addressed the specific issue in a case nearly on all fours with that presented here; namely, Comedy III Productions v. Gary Saderup, Inc., 25 Cal.4th 387, 106 Cal.Rptr.2d 126 , 21 P.3d 797 (2001). See McCarthy, supra at § 8:27 (stating that when deciding Comedy III , the California Supreme Court found that when the Challenged speech is not in the category of “commercial speech,” what Zacchini teaches us is that valid interests behind the right of publicity must be balanced against First Amendment policies, and that an accommodation must be reached).
In Comedy III , the plaintiff, Comedy III Productions, which is the registered owner of all rights to the former comedy act known as The Three Stooges, filed suit against the defendants, Gary Saderup and Gary Saderup, Inc., seeking damages and injunctive relief for violation of, among other things, California’s right of publicity *957 statute in connection with the defendants’ sale of T-shirts and lithographs bearing the image of the Three Stooges produced from a charcoal drawing done by Saderup. See 106 Cal.Rptr.2d 126 , 21 P.3d at 800 . The defendants sold the T-shirts and lithographs without the plaintiffs consent, profiting $75,000 from the sale of these items. Id. at 800-01. The trial court found for the plaintiff, and entered judgment in the amount of $75,000 as well as $150,000 in attorney’s fees plus costs. Id. at 801. The court also issued a permanent injunction restraining Saderup from violating the statute by use of any likeness of The Three Stooges in lithographs, T-shirts, “or any other medium by which Saderup’s artwork may be sold or marketed.” Id. In addition, the trial court enjoined Saderap in several other respects regarding his marketing products in connection with The Three Stooges, but allowed Saderup’s original charcoal drawing from which the reproductions were made to be exempt from the injunction. Id. at 801.
The defendants appealed, and the court of appeals modified the judgment by striking the injunction on the basis that the plaintiff had not shown a likelihood of continued violation of the statute, and that the wording of the statute was overbroad. Id. However, the court of appeals affirmed in all other respects, thereby rejecting the defendants’ arguments that 1) his conduct did not violate the terms of the statute; and 2) in any event, his conduct was protected by the constitutional guaranty of freedom of speech under the First Amendment. Id. The defendants appealed to the California Supreme Court, which granted leave to address the two arguments raised by the defendants. Id. For purposes of the matter at hand, we focus on the Supreme Court of California’s analysis of the First Amendment argument.
The court began by recognizing that the defendants’ First Amendment claim presented a difficult issue, in that the works in question were expressive works and not commercial advertisements. See Comedy III, 106 Cal.Rptr.2d 126 , 21 P.3d at 802 . The court noted that “[ajlthough [the defendants’] work was done for financial gain, the First Amendment is not limited to those who publish without charge.... An expressive activity does not lose its constitutional protection because it is undertaken for profit.” See id. (alterations, internal quotation marks, and citation omitted). The court then recognized the high degree of First Amendment protection for noncommercial speech about celebrities, but at the same time noted that not all expression that trenches on the right of publicity receives such protection. See id. Specifically, the court opined:
The right of publicity, like copyright, protects a form of intellectual property that society deems to have some social utility. Often considerable money, time and energy are needed to develop one’s prominence in a particular field. Years of labor may be required before one’s skill, reputation, notoriety or virtues are sufficiently developed to permit an economic return through some medium of commercial promotion. For some, the investment may eventually create considerable commercial value in one’s identity.
Id. at 804-05 (internal quotation marks and citation omitted).
The court then found that the case before it exemplified that kind of creative labor. Id. According to the California Supreme Court, the three men who came to enjoy celebrity status began their career in vaudeville and it was a “long and arduous” process until the three finally enjoyed the heights of slapstick comic celebrities known as The Three Stooges. See 106 Cal.Rptr.2d 126 , 21 P.3d at 805 . As the court stated, “[t]hrough their talent and *958 labor, they joined the relatively small group of actors who constructed identifiable, recurrent comic personalities that they brought to the many parts they were scripted to play.” Id. As a result, the issue became whether the defendants’ First Amendment rights trumped the plaintiffs right of publicity.
Relying on Zacchini and several cases from lower courts recognizing a celebrity’s right of publicity, the court found that depictions of celebrities which amounted to little more than the appropriation of the celebrity’s economic value, were not protected by the First Amendment. See id. at 805. As that premise related to the expressive works at issue, the court opined:
It is admittedly not a simple matter to develop a test that will unerringly distinguish between forms of artistic expression protected by the First Amendment and those that must give way to the right of publicity. Certainly, any such test must incorporate the principle that the right of publicity cannot, consistent with the First Amendment, be a right to control the celebrity’s image by censoring disagreeable portrayals. Once the celebrity thrusts himself or herself forward into the limelight, the First Amendment dictates that the right to comment on, parody, lampoon, and make other expressive uses of the celebrity image must be given broad scope. The necessary implication of this observation is that the right of publicity is essentially an economic right. What the right of publicity holder possesses is not a right of censorship, but a right to prevent others from misappropriating the economic value generated by the celebrity’s fame through the merchandising of the “name, voice, signature, photograph, or likeness” of the celebrity.
Comedy III, 21 P.3d at 807-08 . Beyond this precept, the court looked to the first factor of copyright’s fair use doctrine— “the purpose and character of the use”-— for guidance. Id. at 808 (quoting 17 U.S.C. § 107 (1)).
The court further looked to the United States Supreme Court regarding the purpose and application of this fair use factor and noted that the inquiry involved “ ‘whether the new work merely supersede[s] the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative.’ ” Comedy III, 106 Cal.Rptr.2d 126 , 21 P.3d at 808 (internal quotation marks and citations omitted) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 , 114 S.Ct. 1164 , 127 L.Ed.2d 500 (1994)). The court found that looking to whether the work in question possessed any “transformative” elements squared with the Supreme Court’s finding in Zacchini that “[w]hen artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist.” Id. (citing Zacchini, 433 U.S. at 575-76 , 97 S.Ct. 2849 ). In other words, although the Supreme Court did not apply the transformative test per se in Zacchini, the Court looked to whether the defendant had simply appropriated the plaintiffs performance in its entirety without any further creative effort. In addition, the court noted that the “trans-formative” test also squared with the First Amendment and the right of publicity inasmuch as “works of parody or other distortions of the celebrity figure are not, from the celebrity fan’s viewpoint, good substitutes for conventional depictions of the *959 celebrity and therefore do not generally threaten markets for celebrity memorabilia that the right of publicity is designed to protect.” Id. (citing Cardtoons, L.C. v. Major League Baseball Players Assoc., 95 F.3d 959 , 974 (10th Cir.1996)). Said differently, “[t]he ‘transformative’ test ... protects] the right-of-publicity holder’s core interest in monopolizing the merchandising of celebrity images without unnecessarily impinging on the artists’ right of free expression.” Id. at 808 n. 10.
Applying the transformative test to an artist’s work at issue in Comedy III , the charcoal sketch made into lithographs and printed on T-shirts, the court found that the defendants’ work was not protected inasmuch as the creative contribution was subordinated to the overall goal of creating a literal image of the Three Stooges to commercially exploit their fame. Id. at 811. In doing so, the court noted that when an “artist’s skill and talent is manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame, then the artist’s right of free expression is outweighed by the right of publicity.” Id.
In the instant case, where we are faced with an expressive work and the question of whether that work is protected under the First Amendment, the reasoning and transformative test set forth in Comedy III are in line with the Supreme Court’s reasoning in Zacchini as well as in harmony with the goals of both the right to publicity and the First Amendment. Applying the test here, it is difficult to discern any appreciable transformative or creative contribution in Defendant’s prints so as to entitle them to First Amendment-protection. “A literal depiction of a celebrity, even if accomplished with great skill, may still be subject to a right of publicity challenge. The inquiry is in a sense more quantitative than qualitative, asking whether the literal and imitative or the creative elements predominate in the work.” Comedy III, 106 Cal.Rptr.2d 126 , 21 P.3d at 809 (footnote omitted).
Indeed, the rendition done by Rush is nearly identical to that in the poster distributed by Nike. Although the faces and partial body images of other famous golfers appear in blue sketch blending in the background of Rush’s print, the clear focus of the work is Woods in full body image wearing his red shirt and holding his famous swing in the pose which is nearly identical to that depicted in the Nike poster. Rush’s print does not depict Woods in the same vein as the other golfers, such that the focus of the print is not the Masters Tournament or the other golfers who have won the prestigious green jacket award, but that of Woods holding his famous golf swing while at that tournament. Thus, although it is apparent that Rush is an adequately skilled artist, after viewing the prints in question it is also apparent that Rush’s ability in this regard is “subordinated to the overall goal of creating literal, conventional depictions of [Tiger Woods] so as to exploit his ... fame [such that Rush’s] right of free expression is outweighed by [Woods’] right of publicity.” See id. at 811.
In fact, the narrative that accompanies the prints expressly discusses Woods and his fame:
But the center of their [other golfers’] gaze is 1997 winner Tiger Woods, here flanked by his caddie, “Fluff’, and final round player partner’s (Constantino Rocca) caddie on right, displaying that awesome swing that sends a golf ball straighter and truer than should be humanly possible. Only his uncanny putting ability serves to complete his dominating performance that lifts him alongside the Masters of Augusta.
*960 Accordingly, contrary to the majority’s conclusion otherwise, it is clear that the prints gain their commercial value by exploiting the fame and celebrity status that Woods has worked to achieve. Under such facts, the right of publicity is not outweighed by the right of free expression. See Comedy III, 106 Cal.Rptr.2d 126 , 21 P.3d at 811 (noting that the marketability and economic value of the defendant’s work was derived primarily from the fame of the three celebrities that it depicted and was therefore not protected by the First Amendment).
This conclusion regarding Plaintiffs right of publicity claim is in harmony with that regarding Plaintiffs claims brought under the Lanham Act. As the Restatement explains:
Proof of deception or confusion is not required in order to establish an infringement of the right of publicity. However, if the defendant’s unauthorized use creates a false suggestion of endorsement or a likelihood of confusion as to source or sponsorship, liability may also be imposed for deceptive marketing or trademark or trade name infringement.
Restatement, supra § 46 cmt. b, 537.
Because Plaintiff has come forward with evidence of consumer confusion as to Woods’ sponsorship of the products in question, it is for the jury to decide whether liability should be imposed for Plaintiffs claims brought under the Lanham Act, and this is true whether employing the balancing approach set forth in Rogers or simply employing the eight-factor test in the traditional sense. The majority’s failure to do so in this case is in complete contravention to the intent of Congress, the principles of trademark law, and the well-established body of jurisprudence in this area. In addition, the jury should also be allowed to consider evidence regarding Plaintiffs federal dilution claim inasmuch as Plaintiff has proffered evidence on each element of this claim. Finally, although Plaintiff is entitled to summary judgment on its right of publicity claim, at the very least, this claim presents a question for the jury as well.
I therefore respectfully dissent from the majority opinion affirming summary judgment to Defendant as to all of Plaintiffs claims.
. Contrary to the claim made by the majority in footnote 11 of its opinion, this dissent in no way suggests that the balancing test set forth in Rogers is limited to titles. Rather, it is the majority’s failure to consider evidence of confusion under the eight-factor test in relation to the specific artistic expression when applying the Rogers test to which this dissent takes issue.
. Commentators agree that the impetus behind privacy law in general was the seminal article authored by Samuel D. Warren and Louis D. Brandéis, The Right to Privacy, 4 Harv. L.Rev. 193, 195 (1890), where the authors contended that people had a right to be left alone. See J. Thomas McCarthy, The Rights Of Publicity And Privacy § 1.11 (2d ed.2000). Later, Prosser and Keeton proposed the legal recognition of a right to privacy encompassing four distinct causes of action, with the fourth being the misappropriation of an individual’s name or likeness, from which the right of publicity evolved. See W. Page Keeton Et Al., Prosser And Keeton On The Law Of Torts § 117, at 851-68 (5th ed.1984); see also David J. Michnal, Tiger’s Paper Tiger: The Endangered Right of Publicity, 58 Wash. & Lee L.Rev. 1155, 1159-160 (2001) (chronicling the evolution of publicity rights).
. Because Ohio's right of publicity statute was enacted after the inception of this case, Plaintiff concedes that it is inapplicable here; however, Plaintiff looks to the statute by analogy as support for its common law right of publicity claim. See Plaintiff’s Brief on Appeal at 19-20.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9496145. Public record. Not legal advice.