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Tournament of Roses logo's controversy

Art Center alumnus David Bartholomew says he created the stylized rose while a student in 1977, but he's not the credited designer. His legal appeals have failed.

December 29, 2011|By Mike Boehm, Los Angeles Times

Bartholomew's other key evidence would have been a pencil drawing on tracing paper with a yellowed piece of white tape attached. He says he made it in 1977 when he and a handful of other students in one of his courses were coaxed into an informal class competition to create a rose that could be painted at midfield of the 1978 Rose Bowl game. Bartholomew says the tracing paper drawing is his final working draft. On it, markings and notations in ink call for eliminating two leaves. With that change, the result would be almost identical to what's now the tournament's logo.

A note on the back of Bartholomew's tracing paper drawing says "meet Leachman Follis on Mon." He says it's a reminder to keep the appointment during which he and his instructor, John Follis, gave his finished rose drawings to Lathrop Leishman, the tournament executive known as "Mr. Rose Bowl." Follis and Leishman are dead, as is Don Kubly, the Art Center president who Bartholomew said urged Follis' class to enter the competition. Bartholomew says his rose was picked as the class' submission but was not used, and that the drawings he submitted were never returned.

Neither a football fan nor a parade buff, he says he paid no further attention to the tournament and didn't become aware of its logo until December, 2005, when he saw it on the Internet. In 2006, he approached Tournament officials, saying the logo was his and he wanted to be paid. Asked for proof, Bartholomew turned to his alma mater to help him find eyewitnesses — his long-forgotten fellow-students from John Follis' class. In March, 2007, Art Center's attorney emailed Bartholomew, saying the school wouldn't cooperate without a subpoena.

Thus began the strange journey through the courts that has left Bartholomew obsessed, embittered, and owing $14,625 he doesn't have, because of sanctions U.S. District Court Judge Cormac Carney levied after declaring Bartholomew a "vexatious litigant." Bartholomew had continued filing fresh pleadings and trying to buttonhole witnesses, even after Carney had dismissed his case on statute of limitations grounds.

Bartholomew has little money, works part-time as a night watchman at a senior citizen home and recently has battled rectal cancer. He shares a cluttered one-bedroom apartment in Dana Point with a roommate. A look into the court files reveals many long, rambling, hard-to-follow submissions that fail to address the technical legal issues posed by his opponents. They serve as ample proof that attempting to represent himself in a federal claim for copyright violation was a task Bartholomew was ill-equipped to undertake.

Then, again, making this a federal case wasn't exactly Bartholomew's idea. He had something much simpler in mind. Because Art Center officials said they would not turn over his 1977 classmates' names without a subpoena, Bartholomew filed a small claim in Orange County Superior Court. He would get the subpoena, secure the names, then track down his long-lost classmates to provide eyewitness accounts he could give to tournament officials to back his demand for payment.

The small claims filing form requires plaintiffs to briefly state the nature of their beef. Bartholomew wrote that he was suing for copyright infringement. Copyright law, however, falls solely under federal jurisdiction, and Art Center's attorneys immediately had the case transferred to U.S. District Court in Santa Ana. There, they moved for a dismissal on the grounds that a three-year statute of limitations had long run out. Carney agreed, deciding that Bartholomew should have sued no later than the mid-1980s. Bartholomew tried to appeal, but the Ninth Circuit denied it in 2010, saying he had missed the filing deadline by more than a year. Bartholomew says he tried to file papers inside the deadline, but the clerk of the appellate court kept rejecting them because they didn't follow required formats.

Bartholomew said it was clear to him that the statute of limitations should not have been applied, because the copyright violation he alleged was continuous and ongoing. But he lacked the legal acumen or the writing skills to argue that point effectively in court pleadings.

In fact, said David Nimmer, a copyright attorney and UCLA law professor whose book, "Nimmer on Copyright" is considered a standard text, the Ninth Circuit Court of Appeals has held repeatedly that there is "a rolling statute of limitations" if a disputed copyright is still in use. All that's limited, Nimmer said, is how far back a plaintiff can go in claiming damages for the copyright's unauthorized use — the law won't allow compensation for violations that took place more than three years before a suit was filed. But any subsequent violations are fair game.

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