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Tuesday, April 24, 2012

Laws In Collision

Artistic freedom versus licensing rights—the law is in need of a course correction before it runs afoul of itself and takes photographers into a black hole of uncertainty



What do an artist, the University of Alabama,
a host of trademark law professors and members of the major collegiate athletic conferences have in common? As absurd as the question may seem, the answer is rather sobering: All are participants, to varying degrees, in a legal showdown that pits copyright law and constitutional considerations against trademark law, and has the potential for dramatically defining the rights that all visual artists have when their artwork or images includes or incorporates trademarks or trade dress.

The case involving what one party described as "the head-on collision of First Amendment/Fair Use protection and trademark rights in art" is The Board of Trustees of the University of Alabama v. New Life Art, Inc. and Daniel Moore, and it's presently pending before a federal appeals court in Atlanta. The case pits a visual artist—who asserts that First Amendment and Fair Use rights permit him to create copyrightable works and to benefit from the licensing or sale of those works—against a university claiming it has the right to protect its licensing efforts by preventing third parties, including the artist, from using the university's trademarks and trade dress, even if those elements are merely visible in artwork. The cast of characters has now expanded to include law professors from various law schools around the country, and other major universities in the United States.

At the heart of the Alabama case is Hoover, Alabama-based visual artist Daniel Moore. Much of his art has concentrated on depicting, journalizing and celebrating historic moments in University of Alabama football. As Moore's lawyer, Stephen Heninger, detailed for the federal appeals court, Moore's "first painting of Alabama football [was] titled 'The Goal Line Stand' documented and celebrated Alabama's 1979 Sugar Bowl victory over Penn State." The painting was not licensed but, as the district court noted, "benefitted both [Moore and the University] and led to other successful sales of other paintings beneficial to both sides."

Moore describes his work, which in many respects has the feel of a photograph or photo-composite, as "photofuturism": "five parts realism to one part motion." While he often uses photographs of the events as a reference, the artwork is very much his own, and very much in demand. Original paintings have commanded prices well into the five-figure range.

The University of Alabama—Moore's alma mater—has taken the position that the uniforms worn by its football players, which incorporate the school colors, constitute protected trade dress. In the University's view, third parties cannot portray and sell football scenes (which include those uniforms) without a license to do so. This includes any unlicensed use of the University's marks, even in the image area. Moore's lawyer freely admits that Moore's artwork portrays Alabama's uniforms and school colors: "Moore's artwork naturally incorporates and depicts the football uniforms of the Alabama players involved in defining moments of athletic efforts, commitment and success."

Laws In Conflict?
As some photographers have probably discovered, different areas of law can apply to a single image. One common intersection of law involves copyrights and publicity rights, which is why photographers who plan to commercialize images obtain model releases from their subjects. In such cases, the photographer may own the copyrights to the image, but cannot commercialize the image without obtaining the publicity rights belonging to the subject of the photograph.

 

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