DPP Home Business Laws In Collision

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


In 1998, while Gentile was fending off trademark claims in Cleveland, the licensing agent for Tiger Woods sued the publisher of sports art created by Tuscaloosa, Alabama-based Rick Rush. At the heart of this trademark infringement suit was a painting Rush created in 1998 entitled The Masters of Augusta, which commemorated Woods' record-setting 1997 victory at the Masters Tournament. The district court ruled in favor of the publisher and dismissed the licensing agent's trademark claims. Woods' licensing agent appealed the decision. In 2003, in the course of rejecting the licensing agent's trademark claims, a federal appeals court explained that Woods' licensing agent was essentially asking the court "to constitute Woods himself as a walking, talking trademark." When rejecting this request, the court explained, "[i]mages and likenesses of Woods are not protectable as a trademark because they do not perform the trademark function of designation. They do not distinguish and identify the source of goods. They cannot function as a trademark because there are undoubtedly thousands of images and likenesses of Woods taken by countless photographers, and drawn, sketched, or painted by numerous artists, which have been published in many forms of media, and sold and distributed throughout the world. No reasonable person could believe that merely because these photographs or paintings contain Woods's likeness or image, they all originated with Woods."

Apparently undeterred by these decisions, entities involved in licensing trademark rights held firm to the view that the question of whether trademark law trumped copyright law remained unsettled. The battle lines had been drawn.

Enter The Artist And The Elephant
Over the span of two decades, Moore enjoyed a good relationship with the University. He was given unprecedented access, ranging from sideline passes for the football games to being permitted to borrow memorabilia, equipment, jerseys and trophies from the Paul W. Bryant Museum to use in his artwork. Moore's artwork presented the University in a positive light, so much so that Alabama's Senior Athletic Director Dr. Finus Gaston described Moore's art as "art the University likes." Moore's reputation extends well beyond the University's confines. In 2009, a columnist for The Birmingham News, writing about the previous day's game, described Alabama's blocking of a Tennessee field goal attempt at the end of the game as a "Daniel Moore moment."

Moore entered into the first of five project-specific license agreements with the University in 1991, where University indicia—trademarks—were used on the border outside of the image area. However, Moore's relationship with the University changed dramatically in January, 2002. At that time, the University demanded that Moore pay an 8% license fee for all artwork "that shows the University's uniforms or indicia," and that this fee would apply to all artwork that he would create, as well as everything he had already created (even in the decade before he entered into any license agreement with the University). Moore declined to accept the terms, asserting that he didn't need a license to create artwork depicting events that had actually taken place. In addition to adhering to the view that he has a constitutional right to create his artwork, Moore didn't want to be told what he could or could not paint. Although Dr. Gaston testified that Moore's view was understandable, the University stopped giving Moore access to the sidelines. Undeterred, Moore continued to produce his artwork. Thereafter, when Moore released a new piece of art showing the University's uniforms, the University would send Moore a cease and desist notice.

The University sued Moore for trademark infringement in 2005 in a federal court in Alabama. Ironically, two weeks before the University filed suit, Moore was featured in the Alabama Alumni Magazine in an article entitled "When Turf Meets Canvas." As detailed in the article, "[w]ith one of the most recognizable signatures in the University of Alabama community, Daniel Moore may be on par with highly famed coaches and players when it comes to his standing with fans of UA football.... Free of the constraints of real world logistics, he is able to condense the drama of sport into something that fits inside a single frame."

 

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