After a legal battle stretching over the past four years, a federal judge has ruled that well-known sports artist Daniel Moore did not commit trademark infringement by painting notable scenes at University of Alabama football games. Moore authored his first painting paying homage to Alabama football almost 30 years ago; it featured the “Goal Line Stand” against Penn State during the 1979 national championship.

The university filed its lawsuit back in 2005, claiming that Moore infringed upon trademarked images and that the university was entitled to licensing fees and royalties. Specifically, UA alleged that the players’ uniforms are trade dress protected under trademark law. After the suit was filed, Moore assured ESPN readers that he didn’t blame his alma matter: “I don’t consider this the doing of the university or of Alabama nation. . . . It’s not the students, the professors or the majority of the Alabama family. It’s just a few misguided souls.”

In response to the lawsuit, Moore issued a counterclaim asserting that his artwork is protected by both the First Amendment and the fair use doctrine, and that the university’s suit infringed upon his civil rights. The case stalled in 2006 after a court-ordered mediation, but litigation resumed in 2008 when it became clear that the dispute would not settle.

This lawsuit is strongly reminiscent of a 2003 Sixth Circuit decision, holding that artist Rick Rush’s paintings–most notably one commemorating Tiger Woods’ victory at the 1997 Masters Tournament–were sufficiently “transformative” to merit protection under the First Amendment. The Court held that “First Amendment protection of [transformative] works outweighs whatever interest the state may have in enforcing the right of publicity.” Rush’s paintings of Tiger Woods, however, were arguably less of a “literal depiction” of its subject than Daniel Moore’s works–which are remarkably true-to-life.

In the end, U.S. District Court Judge Robert Propst sided with Moore, denying the university’s trademark infringement claims and holding that the paintings constituted protected First Amendment speech. The district court’s opinion in University of Alabama Board of Trustees v. New Life Art, Inc. rejected UA’s argument that Moore’s depiction of players in their official uniforms violated trademark laws. The court 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 university further asserted that–unlike Rush’s paintings in the Tiger Woods case–Moore’s paintings aren’t sufficiently “transformative” to merit protection under the First Amendment and fair use doctrine. The court disagreed, holding that “the reality [of Moore’s paintings] is what adds strength to the degree of the artistry, distinction, and secondary meanings of his paintings.” In this blogger’s opinion, Judge Propst’s reliance on the “reality” of the paintings as evidence of fair use and First Amendment protection seems to contravene the traditional understanding that originality and not “sweat of the brow” is what matters in copyright/trademark infringement disputes.

The university prevailed in one aspect. Judge Propst held that:

[Moore and New Life Art, Inc.] have no right to manufacture, sell, distribute, or otherwise deal in mugs, cups, calendars, mini prints or any other products which include [the university’s] marks and are not paintings and/or prints of the same or larger sizes and of equal or greater quality than the limited edition paintings that defendants have heretofore created and produced.

Judge Propst appears to be drawing a distinction between Moore’s limited edition paintings–which he refers to as “fine art”–and other, more commercial, products that display these same works. Considering the court’s earlier finding that Moore’s paintings are transformative, the doctrinal reasons behind this conclusion are unclear.

Readers should note that this game is not yet over; a spokesperson for the University of Alabama has announced that the university plans to appeal the district court’s ruling to the 11th Circuit Court of Appeals.

Lacey R. Logsdon

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One Response to Moore Rolls the Tide: Sports Artist Daniel Moore Prevails Against the University of Alabama’s Trademark Infringement Claim

  1. Daniel Moore says:

    Lacey,

    I bumped into your blog while doing some research on UA’s frivolous lawsuit against me. You wrote:

    In this blogger’s opinion, Judge Propst’s reliance on the “reality” of the paintings as evidence of fair use and First Amendment protection seems to contravene the traditional understanding that originality and not “sweat of the brow” is what matters in copyright/trademark infringement disputes.

    I agree with you in that the judge did not need to rely upon the “reality” of my paintings in order to find that they receive First Amendment protection. I think he was just using this as an counter-argument against UA’s argument — that being, because the paintings are done in a realistic that they are not transformative. I think he understands that even though my painting style is realistic and highly expressive, it is through my original compositions that I convey many life messages, in addition to documenting and comment upon newsworthy events.

    To the latter aspect of my work alone, it falls under the protection of freedom of the press. Even a photojournalist’s photographs are protected. Some of the roles the artist has played throughout history are that of journalist and documenter of history. Artists were the first journalists (cave paintings) long before the onset of the written word. Images convey messages — as noted in the Chinese proverb, “A picture is worth a thousand words.” The University, for years, issued press passes to me in order to garner reference material for my unlicensed prints… which UA gladly sold for a profit. Interestingly, on the back of these passes, it said that the pass was being issued for the purpose of reporting the event as a news item.

    Your article was a good 647-word picture. Thank you for your interest!

    Daniel Moore