Alabama: Where Art Isn't Just Art. - Fordham Intellectual Property, Media & Entertainment Law Journal
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Alabama: Where Art Isn’t Just Art.

Alabama: Where Art Isn’t Just Art.

First amendment rights versus intellectual property rights is how the lawsuit against Daniel Moore by the University of Alabama is being portrayed.  Daniel Moore is an artist who has made his mark painting famous scenes from Alabama football history down to the last detail.  The University of Alabama’s problem stems from the fact that those details include the trademarked uniforms and logo of the Crimson Tide.   They want Moore to pay royalties for the depictions while Moore contends that the paintings are an expression of his free speech.

Moore used to work closely with the University to paint the famous scenes, but their relationship soured in 2000.  Five years later the University sued when Moore refused to pay royalties, which the University would have used to fund student scholarships.  The University challenged that Moore, who sold coffee mugs, t-shirts and calendars as well as large prints, profited by selling items that violated their trademark rights.

The federal judge ruled that Moore’s paintings were protected under his First Amendment rights but that he could not sell the images on coffee mugs or t-shirts because it violated the University’s trademark rights.  Neither party is happy with the result so both have appealed the ruling. The court of appeals in Alabama heard arguments on Thursday and their ruling could have a great effect on intellectual property law and art.

Moore was happy that the ruling allowed him to paint the scenes and sell them as large prints.  Still, according to Moore, he is a journalist and his paintings are artistic renderings of public moments.   He feels his paintings should be protected under the First Amendment and he should be able to profit from selling them in whatever way he chooses.

Moore points to a similar case involving an artist’s painting of Tiger Woods to back his viewpoint.  In ETW Corp. v. Jireh Publishing, Inc., artist Rick Rush created multiple paintings of Tiger Woods and sold prints of them.  The Court here ruled that the images were protected by free speech under the First Amendment.  Rush, however, was not trying to sell his print on other commercial items and thus can be distinguished from Moore’s case.

The University, on the other hand, is happy with the ruling to stop the sale of Moore’s images on the smaller commercial products, but would like the court to rule that the paintings themselves infringe on their trademark rights.  It is important for a trademark holder to protect their mark in order to keep its strength and effectiveness, and the University feels that their trademark claims are more valid than Moore’s protection under the First Amendment.

Lines have been drawn and groups are rushing to back both sides in what is shaping up to be an important decision of art and press versus trademark protection.  The University has the backing of at least 27 universities, who have all filed amicii briefs on their behalf.  Colleges depend on income from their branding and trademarks and feel that this could be a slippery slope that would allow for others to profit off of their marks.

Media organizations and law professors have sided mostly with Moore.  The American Society of Media Photographers filed an amicus brief on Moore’s behalf, and the Alabama Press Association stated that Moore was expressing his surroundings like Monet did when painting water lilies.  According to Moore’s lawyer, over 30 law professors have filed briefs for Moore as well.

Both sides are worried about the potential implications.  If the University of Alabama gets a decisive victory then what happens to any artist trying to capture real life and profit off of their work? Imagine trying to paint accurate depictions of Times Square or Broadway without infringing on any trademarks.  It would be near impossible.

If Moore were to win out, universities feel that a lot of money would be lost.  “Artists” could make any drawing or painting of a logo and profit off of it without paying royalties.  This outcome seems much less likely.

In the end, the courts will decide for Moore or the University of Alabama; infringement or no infringement; and freedom of speech and the press or trademark protection.  Artists and universities are anxiously waiting a decision that could have a great impact on an entire profession.

Tim Shields