KIN SUE OVER WAYNE’S IMAGE IN WARHOL PRINT

The seven sons and daughters of movie great John Wayne have filed a lawsuit charging that noted pop artist Andy Warhol illegally used the late actor’s likeness in a new print portfolio of 10 Western heroes and images.

Named in the suit filed Wednesday in Los Angeles Superior Court are Warhol, his New York publisher and distributor and Los Angeles’ Upstairs Gallery.

The plaintiff in the suit--which seeks a preliminary injunction stopping further use of the late actor’s name and likeness, unspecified damages and all the profits the defendants have made from use of Wayne’s image--is Wayne Enterprises of Beverly Hills, a limited partnership headed by Michael Wayne, a son of the actor.

Wayne said Thursday that the partnership has registered the trademark “John Wayne” with the U.S. Patent and Trademark Office and is the only entity licensed to use his name and image to sell or promote goods. Wayne said the suit was filed after months of unsuccessful negotiations with Warhol’s publisher, Kent Klineman of Gaultney-Klineman Art publishers in New York.

Klineman’s office said he was out of town until next week and could not be reached for comment.

Wayne said the partnership paid his father $250,000 for rights to his name and image, continues to pay a royalty to his estate and donates profits to the John Wayne Cancer Clinic at UCLA. He estimated that the partnership has given about $2 million to the clinic since Wayne’s death in 1979.

“I don’t know why Andy Warhol and Mr. Klineman should be able to use his (John Wayne’s) likeness when his kids have to pay for it,” Wayne said.

At issue is a new 250-edition Warhol print portfolio that the artist began selling this year. Distributor Fred Dorfman of the Fred Dorfman Gallery in New York (also a defendant in the suit) said the portfolio retails for about $15,000.

In addition to Wayne, other images in the “Cowboys and Indians Suite” portfolio are George Custer, Theodore Roosevelt, Annie Oakley, Geronimo, Native American dolls, a totem mask, an Indian-head nickel, a shield and a mother and child.

Dorfman, who insisted that the dispute is between “John Wayne’s estate and the publisher” of the portfolio, said the suit promises to “be a good case.” He said Warhol’s Wayne image is “something that an artist created” and is not covered by the California partnership’s claims of ownership.

Michael Wayne said he filed the suit after unsuccessful negotiations to license Warhol’s use of the John Wayne image. Wayne said he inadvertently discovered that the portfolio contained his father’s portrait when he saw it on display at the Upstairs Gallery in Beverly Hills in October.

“I was shocked,” Wayne said. “They went ahead without our authorization.”

Wayne said he never spoke directly with the artist, and “I personally don’t believe that Mr. Warhol knew this was going on.”

A spokesman for the gallery said that it holds only one of the 250 versions of the Warhol work and should not be a defendant in the suit.