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. Read More…