With the law squarely against it, UA seemingly adopted a gang mentality by enlisting 27 other universities to help in its battle against Moore, one of the best known sports artists in the country. The universities' claim? Alabama's crimson and white color scheme is so distinctive that it constitutes a trademark, eclipsing Moore's First Amendment right of artistic expression.
The American Society of Media Photographers (ASMP) and the Alabama Press Association have filed a joint amicus brief, supporting Moore's argument that his paintings of classic moments in University of Alabama football are protected by the First Amendment. Thirty law professors, who have taught and written extensively in the area of intellectual property, also have filed a brief supporting Moore. (You can read the full briefs at the end of this post.)
The law professors succinctly sum up the argument that favors Moore and his company, New Life Art:
First, New Life's realistic depiction of the University's football games is not likely to confuse consumers about the source of New Life's goods, or as to the University's sponsorship of or affiliation with those goods. Confusion is actionable under the Lanham Act only when it relates to these types of source relationships, and not when consumers merely recognize the plaintiff's mark. Second, even if some amount of confusion about a relationship between the University and New Life did exist, that confusion would be irrelevant if it was unlikely to affect consumers' decisions to purchase art from New Life Art. Third, the District Court rightly held that the University's football uniforms and colors are aesthetically functional as used by New Life. Fourth, and finally, New Life's expressive works are protected under the First Amendment and cannot be deemed infringing.
The ASMP brief addresses the cultural issues at work in the case:
Degas lived in Paris and painted its dancers. Monet lived in Giverny and painted water lilies. Bruegel lived in Belgium and painted lowland peasants. Audubon roamed North America and painted its birds.
Daniel Moore lives in Alabama; he paints football.
Indeed, it is natural that an Alabama artist, seeking to communicate about the world around him, would focus on college football. The sport in our state often is described in religious terms:
Against this background, it is not surprising that Moore, a talented artist who is a University of Alabama alumnus living in Birmingham, married to a University of Alabama alumnus, and the father of three University of Alabama alumni, fills his canvasses with images of the grit and drama of football as it is played at the University of Alabama, the grace and symmetry of its players, and the spoils of battles hard fought. In the tradition of visual artists throughout timefrom the cave paintings of Altamira to the photography of Annie LebovitzMoore "comment[s] on his world" using the "tools of his culture."
His art communicates ideas, feelings, messages, concepts, and meanings. . . . and is fully protected by the First Amendment.
(The university's) lawsuit seeking to enforce federal law to suppress Moore's work thus triggers the full weight of First Amendment precedent.
Trademark law is the primary issue, and the ASMP brief gets to the heart of the matter:
As a preliminary matter, (the university's) trademark claim itself rests on wobbly legs, for the simple reason that Moore has not used any of the images in which (the university) claims trademark rights, as a symbol to identify a source or origin of a product. He, therefore, has not engaged in any infringing activity.
Decades of case law establish that it is the use to which a design or symbol is put that defines it as a trademark.
What does that mean in everyday terms?
Moore's paintings are not beer cans . . . , taxi cabs . . . , or dry cleaning equipment. . . . They are artistic expression sold on the basis of their intrinsic value as pieces of art. The basic ingredient of infringing activityuse of the mark as a product identifieris absent.
What kind of world will we live in if the University of Alabama and its friends have their way?
Consider the artist who wishes to paint or photograph a woman carrying a Coach handbag, a child wearing Nike tennis shoes or a construction worker pausing to drink out of a can of Coke. Under (current law), he can be assured that his expression will be protected as long as the trademarked product has relevance to the visual depiction he wishes to create and he does not use it to mislead the viewer that the owner of the trademark is the source of his portraits. Within these boundaries, he can paint and photograph his world.
Under the test proposed by the (university), that same artist, before snapping a shot or raising his brush to the canvas, must first ask himself: Is the mark strong? In each of the above examples, the answer is "yes." That may be enough for him to refrain from creating his expression, or at the very least, give him pause.
That test makes no sense to us. And the university's case becomes almost absurd when it is examined in a close light:
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