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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


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Alabama's case against Moore has the potential for being a major test case. According to Moore's attorney, Heninger, lawyers for Alabama and CLC have made it clear that they will go to the U.S. Supreme Court if necessary to establish that trademark rights trump Moore's copyrights and rights under the First Amendment. Heninger summed up the situation: "CLC wants the law in black and white and a favorable ruling so they can charge the universities they represent more to go after art work and posters. They've tightened up a lot on [unlicensed] T-shirts, which is understandable. But art, we've got to fight."

If there was any doubt about the seriousness with which CLC and Alabama are pursuing the case, the University's admissions as to the amounts spent on the case make it clear. Earlier this year, University spokeswoman Deborah Lane told The Birmingham News that the University's legal expenses in the case were approximately $1.4 million (since CLC admitted it was paying half the cost of the case, Moore's attorney suggests that Lane's statement refers only to the University's half of the cost). Considering that the damages at issue in the case were but a small fraction of the expense involved in the case, it's apparent that something far more important to CLC and Alabama is at stake.

For Moore, the case is no less serious, involving personal freedoms and his right to earn a living from his artwork. As he told The New York Times earlier this year, the case is about "free speech, my right to paint what I want and sell my work."

The verdict is still out on whether this will be a major test case, and whether trademark owners will be able to control what happens with images where their trademarks are displayed. However, given the potentially far-reaching impact a case like this may have—potentially defining the limits to the rights that all visual artists have—it's worth watching to see what happens.

Samuel Lewis is a Board Certified Intellectual Property law specialist and partner at Feldman Gale, P.A., in Miami, Fla., and a professional photographer who has covered sporting events for more than 25 years. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

 

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