And the Tide Rolls On…To Court
In the Bama Nation, football is a religion and Bear Bryant is a god. The Paul "Bear" Bryant Hall Museum, named after the legendary coach, is a shrine to all that is Crimson Tide football. The walls are adorned with realistic paintings commemorating the greatest moments in the University's football history. Daniel A. Moore, the artist behind the sports paintings and an Alabama alumnus for over two decades, has "crimson tide" running through his blood. What shows even more pride and Bama spirit than Moore's beloved paintings?
The answer is: The University of Alabama's lawsuit against Daniel Moore and his Birmingham company, New Life Art. The suit alleges that the artist is infringing on the University's trademarks.
A trademark is any identifying symbol, logo, motto or design that distinguishes the specific goods or services from others. The University of Alabama's distinctive symbols – the elephant mascot design, the "Crimson Tide", the "Roll Tide" and the "BAMA" slogans – are all registered trademarks and well-known by the public. The University claims that by using the prominent UA symbols in his artwork, Moore is infringing, or violating, their exclusive rights to the use of the trademarks.
In order to resolve this issue, UA and Moore could negotiate a licensing deal. In a license agreement, the "licensor" (UA) would allow the "licensee" (Moore) to use the trademark rights for a "licensing fee." According to a UA press release, the standard fee is 8 percent of net sales.
The problem, UA claims, is that Moore paid the licensing fees for a number of years, and decided to stop payments in 2000. Daniel Moore later filed a countersuit, in which he denies all claims made by the University of Alabama. In particular, Moore says that not all prints were covered by a license agreement and that "there have been a few selective and sporadic limited licensing agreements on isolated projects." His defense is centered around the First Amendment, specifically his right to freedom of speech and freedom of the press. The First Amendment grants permission to the media to post photos or drawings that contain registered trademarks, as this constitutes "fair use." Moore asserts that since "artists were the journalists", the use of the UA trademarks in his prints are "fair use" and should not require a license.
Moore's argument of "fair use" from First Amendment rights is not the first of its kind. In 2000, Tiger Woods and ETW Corporation, Wood's licensing agent, sued sports artist, Rick Rush and Jireh Publishing. The focus of the controversy were Rush's prints depicting Woods's victory at the 1997 Masters. Woods filed suit in order to protect "his name and his image under right-of-publicity and trademark laws." Rush, like Moore, maintained that his prints are protected by the First Amendment. The U.S. District Court and the U.S. Court of Appeals in Cincinnati (6th Cir.) agreed with Rush. On June 20, 2003, the decision was that Rush had a First Amendment right to distribute the prints of Tiger Woods's winning the 1997 Masters.
Defending UA's position is Finus Gaston, Senior Associate Athletic Director and Director of Licensing. Gaston contends that all paintings with UA uniforms and colors must be subject to licensing, regardless of whether the print includes a UA registered trademark. He believes that the University has a "publicity right" to its color scheme. Moore and New Life Art criticize UA for taking an "all-or-nothing" approach.
Although there are many free-speech advocates and Bama football fans supporting Moore's right to "fair use", the University of Alabama maintains their position, not only to protect their rights, but also to protect the rights of other businesses that do honor the licensing agreements.
If Moore and UA can reach a licensing deal for the future, then gridiron followers can worship in peace. If not, it will be "Roll Tide" to court for UA and Daniel Moore.
Article by Stephanie Sotelo,
CRA International
Stephanie Sotelo
Sources:
"Board of Trustees of the University of Alabama v. New Life Art, Inc. and Daniel A. Moore." Civil Action No. 05-B-0585-W. Answer and Counterclaim, March 22, 2005. United States District Court for the Northern District of Alabama Western Division.
"Board of Trustees of the University of Alabama v. New Life Art, Inc. and Daniel A. Moore." Civil Action No. 7:05-CV-00585-RDP. Complaint, March 18, 2005. United States District Court for the Northern District of Alabama Western Division.
Chambers, Marcia. "Golf; Artists vs. Icons, With Woods in Middle." The New York Times. July 3, 2002.
Griffith, Janet. "Statement Regarding New Life Art, Inc." The University of Alabama Press Release. March 22, 2005.
Liptak, Adam. "Sports Artist Sued for Mix of Crimson and Tide." The New York Times. November 12, 2006.
Tannenbaum, Wendy. "Artist wins right to distribute work bearing golfer's image." The New York Times. Summer 2003 (Vol. 27, No. 3), p. 13.
http://www.newlifeart.com/newsrelease2.htm
http://www.rolltide.com/ViewArticle.dbml?DB_OEM_ID=8000&ATCLID=239974
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