Sports Law Blog
All things legal relating
to the sports world...
Monday, November 13, 2006
Alabama Suing Sports Artist Over Crimson Tide Artwork (Update)

This Sunday’s New York Times included a nifty front page article on a pending lawsuit against Birmingham sports artist Daniel A. Moore filed by the University of Alabama. Our own Greg Skidmore covered this dispute back in April ’05 in this post. Moore has made what appears to be a pretty good living painting action shots of Alabama football games. His gallery’s web site is called Alabama Crimson Tide Prints.

As Greg predicted, Mr. Moore has now moved to dismiss the case by arguing that the University lacks a right to control depiction of events of historic or public significance.
Mr. Moore has asked Judge R. David Proctor of the Federal District Court in Birmingham to dismiss the case on First Amendment grounds. His brief cited a decision of the federal appeals court in California ruling that a trademark owner “does not have the right to control public discourse” if “the public imbues his mark with a meaning.”

After the citation, Mr. Moore’s lawyer, Stephen D. Heninger, added a parenthetical aside. “Who could argue with a straight face,” he asked, “that the cultural significance of Alabama football has not assumed such a role?”
The problem for Mr. Moore, is that unlike in other cases favoring artists’ rights, which may have involved slightly more transformative expression, his Alabama football paintings tend to be similar to the photographs he uses to compose his work.

I’m not sure I share all of the sentiments expressed in the article. For instance:
“This lawsuit is the equivalent of the Catholic Church suing Michelangelo for painting the Sistine Chapel,” said Keith Dunnavant, an Alabama alumnus and the author of “Coach: The Life of Paul ‘Bear’ Bryant.”
The difference, of course, is that Michelangelo was commissioned by Pope Julius II to paint the Sistine Chapel, whereas Mr. Moore has not been commissioned by the University of Alabama.

Another questionable suggestion:
James Glen Stovall, who taught journalism at the university for 25 years, said only one sort of person would support the suit.

“I can see why, if you’re sitting in a roomful of lawyers, you might come to that conclusion,” Mr. Stovall said. “But no one outside of that room would say: ‘Hey, that’s a good idea. Let’s sue Daniel Moore.’ ”
To me, that does not give enough credit to the University’s claims. The University
seemed to take particular offense at Mr. Moore’s use of his paintings on merchandise like coffee mugs and calendars.
What’s really driving this case? Probably not Mr. Moore’s sale of a $25,000 watercolor or a $100 print, but rather his sale of a $2.00 coffee mug that eats into the University’s merchandising revenues. My guess is that, if the University survives Moore’s current motion to dismiss, the case will be headed towards some sort of settlement in which Moore ceases the sale of mugs and other trinkets emblazoned with his art in exchange for being allowed to continue selling the big ticket items.



I'm sorry about the question, which is likely to have an obvious answer. But was is the university's underlying right here? Is it the copyright on the pictures taken and used as models by Moore? Is it any other right on any image arising from the spectacle organised at the university's stadium?

Would it make any difference if Mr. Moore watched the games live and was able to paint from the vision he retained of the game?

I can understand the reasoning under which Mr. Moore is displaying a predatory behaviour towards the show organised by the Uni and that it is eating away at the Uni's merchandising revenues. What I cannot fully understand is what sort of right does the Uni hold on an image arising from a public spectacle (assuming it is not depicted in a Uni-owned picture)?

Anonymous Luis Cassiano Neves -- 11/13/2006 1:10 PM  

Alabama's claim is for trademark infringement (under the Lanham Act) and unfair competition. The idea is that consumers are being confused or deceived into believing the products are from UA, rather than another source. The plaintiff also has some contract and unjust enrichment claims in the complaint, although I'm not sure the status of those claims.

Blogger Geoffrey Rapp -- 11/13/2006 4:11 PM  

I would think the players would have a stronger claim here. They would need to get past the (awful) Tiger Woods case, but obviously, that decision is not precedent for a court in Alabama. And this case seems more eggregious with the images being on coffee mugs, etc.

You're probably right that this will settle (with the "artist" agreeing to some sort of licensing arrangement with the university), but that won;t insulate him from claims from the players.

Anonymous john -- 11/14/2006 9:30 AM  

Mr. Rapp, I'm an artist, not a lawyer, so hopefully this question makes sense. Would the players have a case even if all that identified them were their uniforms and numbers? Wouldn't the uniforms and numbers be owned by the university? And since they are used over and over again, each time a player leaves school, I would think it would be a harder case to prove?

Anonymous TD -- 9/03/2007 6:56 PM  

Post a Comment