More, more, Moore!
One of my favorite ever topics here on LOC has been the litigation brought by the University of Alabama against painter Daniel Moore for unauthorized artistic depiction of trademarks. As I reported last November, after first writing about this emerging issue four years earlier:
U.S. District Court Judge Robert Propst said in an opinion that Moore did not violate trademark laws by painting scenes of Crimson Tide football without licensing the work through the university. He rejected UA’s argument that the football team’s uniform and colors are iconic enough to trump First Amendment rights in fine art.
‘This court concludes that the depiction of the uniforms in the paintings is incidental to the purpose and expression of the paintings; that is, to artistically depict and preserve notable football plays in the history of University of Alabama football,’ Propst wrote in his memorandum opinion.
As I said then,
You don’t have to go as far as I and praise the kinder, gentler world of the past when an ambitious entrepreneur could pay homage, and maybe pay the mortgage, by taking – yes, horrors! — “free rides” on significant popular culture phenomena that were unlikely to be deemed “affiliations” or “authorized merchandise” without doing the high-end brand equity any harm at all (and probably some good).
This campaign by Alabama, though, really does take the rent-grabbing aspect of this business model to truly offensive levels. There’s no doubt that NCAA schools and other pro sports teams sell “official” sports art, but it is utterly, utterly meaningless to fans whether this art is “approved,” “official,” “endorsed” or anything else (much less “fine”). The claim here is simply “The University of Alabama owns everything about the Crimson Tide, and no one is going to make a penny off fan enthusiasm for the team but us. Period.”
Notwithstanding that, well, yes, the Lanham Act does by its terms protect “approved and endorsed” as well as “source of origin,” I stand by this argument — which is rather narrow, mainly that the NCAA schools and other pro sports leagues should acknowledge that none of this has anything to do with fans, quality or anything other than what may or may not be a legally-granted franchise on branded enthusiasm.
The amicus brief (available here) filed by Big Collegiate IP demonstrates that the schools continue their goal-line defense of intellectual dishonesty in their the presentation of this issue. Its argumentation, which ignores free expression and makes no attempt even to address the First Amendment, is premised entirely on the concept that LIKELIHOOD OF CONFUSION could possibly be implicated in a manner cognizable by the law because consumers could make the awful mistake of thinking Daniel Moore’s paintings were ‘Bama “approved” art — i.e., that he was paying royalties on them.
Indeed, the rubber meets the road when the amici insist, in true NFL style, that, really, it’s all about the fans in the stands, and in fact make this the subject of section I, considering the obvious public policy and free expression implications of the rule of law they seek to impose on the world of sight and color here. Notice the priority of concerns:
To accommodate its legion of fans who desire to identify with the team, each Amicus has a licensing program whereby it licenses use of its marks. . . . The licensing program at each university allows the university to control the quality of the licensed products, so that, for example, messages detrimental to good sportsmanship can be prohibited. The licensing program also provides an important and increasing source of revenue . . .
Unauthorized use by third parties of the color marks of Amici threaten both key benefits derived from the right of Amici to control use of their marks. Without that right, Amici could not stop infringers from uses that appear to be approved byAmici but in fact are antithetical to their mission of education in a positive environment – an environment that instills in students a sense of good sportsmanship and fair play and reflects each university’s heritage and goals. In addition, Amici would lose crucial licensing revenues . . .
“Good sportsmanship”? Please. PLEASE.
Don’t get me wrong. The brief opens, in its Statement of Interest, by addressing how uniforms and color combinations are trademarks, and are strong ones, and why the believe Moore’s depiction of them in art is not functional. These arguments are actually addressed with considerable rigor in sections II and III of the brief. This is interesting reading, but is based entirely on the premise that Daniel Moore is a business competitor with the University of Alabama.
That’s not entirely insane, is it? They sell pictures of their football players, and he sells them, too. In fact the court below said when he sells depictions of his art on trinkets and gew-gaws, he is not being an artist; he’s being a merchandiser just like the Crimson Tide itself, and it’s got to stop.
I can hear that. So Big Collegiate IP says, well, what’s the distinction between that and mass-produced art that you hang on the wall? Why should free expression be implicated just because its manufacturer calls it “art”? Where do you draw the line?
Well, drawing lines is what judges are paid to do, and I say you draw it right where Judge Propst did: There’s a line through the depiction of a trademark, which on one side is commerce, and on the other side it’s art — even if it’s something as tacky as sports art. And sorry, lawyers and university trustees, if an artist wants to make a living selling it — but a line there is. And either the chains show reach the line or they don’t.
Hopefully the Eleventh Circuit will not punt on this instant replay.
UPDATE: Here’s coverage, similarly inclined, by Roger Shuler (who, by virtue of the Internet, would have us believe he is a dog).
OVERTIME: Prof. Mark McKenna writes in as follows:
As a follow-up to your blog post on this case, I attach for you this brief for which I was the principal author (on behalf of 30 law professors) and that we filed yesterday. It is not uploaded to the 11th Cir. yet, of course, because the court has not ruled on the motion asking it to accept the brief. If and when it accepts the brief, it will be uploaded.
Here’s the Summary of Argument and short excerpt from the Argument:
The District Court properly held that New Life Art’s (“New Life”) creative works do not infringe the University of Alabama’s (“the University”) rights in the trade dress of its football uniforms, including the their crimson and white colors. 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. . . .
If it were otherwise, no one could realistically depict any sporting event without violating some teams’ trademark rights. Indeed, no one could ever depict a trademark at all without permission. To say that a party infringes when consumers know the mark originates with the mark owner is to say the mark owner owns all uses of a mark in which the mark is recognizable. . . .
Wish I’d said that!