A panel of judges from the 11th U.S. Circuit Court of Appeals has upheld a district court’s ruling that the paintings and prints of artist Daniel Moore are protected by the First Amendment, delivering a blow to the University of Alabama, which maintained that his renderings of famous moments in the school’s football history had violated the school’s trademark rights.
Since 1979, Moore has painted scenes of important events in Alabama football history, some of which were later placed on calendars, mugs and other objects.
However, the university claimed that Moore breached licensing agreements and violated the Lanham Act by infringing on the University’s trademark rights in its football uniforms. Specifically, Alabama argued that Moore’s works are more commercial than expressive speech and entitled to a lower degree of First Amendment protection. Thus, the university claimed that Moore needed permission to portray its uniforms, including the jersey and helmet designs and the crimson and white colors.
Moore countered, claiming that he did not need permission to paint historical events and that there was no trademark violation so long as he did not use any of the university’s trademarks outside the area of the original painting.
In 2009, a district judge sided with Moore in regard to his paintings; however, he lost the right to produce mugs and calendars of the artwork. Portions of that decision were appealed by both Alabama and Moore.
Moore secured the victory this summer.
“We conclude that the First Amendment interests in artistic expression so clearly outweigh whatever consumer confusion that might exist on these facts that we must necessarily conclude that there has been no violation of the Lanham Act with respect to the paintings, prints, and calendars,” wrote the panel.
The panel added that Moore’s use of Alabama’s uniforms in his paintings are “artistically relevant” to portray famous Crimson Tide moments, and that there’s no evidence Moore ever marketed university-endorsed unlicensed items.
Heninger Garrison Davis, which represented Moore, noted that “these rulings mean Moore will be allowed to continue creating and selling his paintings based on Alabama football. Additionally, he will now be allowed to sell calendars featuring his artwork. The decision on the production of mugs and other items was remanded back to the district court. “
Some theorized that Moore was a test case for Collegiate Licensing Company (CLC), which represents the NCAA, Alabama and more than 100 universities and conferences in the multi-billion dollar licensing industry.
In fact, CLC reportedly provided lawyers and financial support to Alabama in the case. As of January, Alabama said it had spent $1.4 million on legal expenses in the case.
“I knew this case was bigger than just about me,” Moore told the Birmingham News. “I’ve had too many people contact me and indicate that the university and CLC were trying to go too far and pushing the boundaries of trademarking into something that the Lanham Act never intended for it to go. I can’t say enough for (attorney) Steve Heninger, who stood right in there and battled the giant with me for over seven years now.”
Moore added that this should come as “good news to anyone who enjoys God-given and constitutionally-protected rights. It’s a significant victory for artists nationwide who before felt threatened by the aggressive and overreaching tactics by certain trademark owners.”
The opinion can be viewed at http://asmp.org/pdfs/UofAlabama.pdf
