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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


The Motivating Factors
One of the forces behind the case is the University's licensing agent, Atlanta-based Collegiate Licensing Company (CLC). According to Moore's attorney, a CLC representative testified that CLC was helping to fund the suit against Moore. CLC's interest in the matter is readily apparent: It represents many universities and various athletic conferences in the market for college-licensed merchandise that was estimated at nearly $4.3 billion worldwide in 2008.

The inescapable reality is that collegiate athletics has become big business. According to a USA Today database, Alabama's total athletic budget for 2010 was over $98 million. In the same year, the football program generated revenues in excess of $40 million more than the program's expenses. Alabama's head football coach receives compensation that rivals or exceeds the CEOs of corporations like 3M, Dow Chemical, General Motors, Hershey, Lockheed Martin and many others. Against this background, it should come as no surprise that, according to CLC's President Bill Battle, CLC "believed the issue of indicia in art was a 'gray area.'"

Battle's testimony confirmed that the suit is an effort to make the law black and white on art. Or as the University's representative testified, "I don't think the [University's] position is it's not a piece of art. I think [Moore] is replicating in almost all of his prints an event that contains our trademark."

And The Winner Is…
After more than four years of litigation, the federal court in Alabama presiding over the case issued something of a split decision. The court rejected as non-meritorious the notion that the University's colors were "protectable as trade dress in and of themselves...." Nonetheless, the court determined that the colors of the uniforms may be a weak trade dress, and that Moore's paintings may create a likelihood of confusion. However, in order to prevail, the University would also have to overcome Moore's defenses, which involved a balancing of trademark interests with the public interest.

In addressing Moore's defenses of First Amendment, Fair Use and Artistic Expression, the court made reference to the Tiger Woods and Gentile cases, and concluded "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. The only relevance of the colors is to correctly depict the scene." Ultimately, the court's analysis concluded that the likelihood of confusion did "not overcome the Artistic Expression and First Amendment defenses when balanced with the public interest in the fine art limited edition paintings and prints." Thus, Moore prevailed in the sense that the court found that he was within his rights to create and sell his artwork.

However, the "court also [saw] a total distinction between cases involving fine artistic creations and cases involving cards, T-shirts, cups, mugs, posters, mini prints, calendars, etc. The court's opinion approves only paintings and prints treated as art...." It did not approve the depiction of Moore's paintings and prints on such products, and thus, limited Moore's ability to license his own artwork.

 

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