Alabama Sues Artist Who Created Football Paintings

Daniel Moore is a proud graduate of the University of Alabama. He loves his alma mater and likes to express his feelings through paintings that depict great moments in the history of Alabama football. Unfortunately, Alabama does not much care for his artistic desires, and it has filed a lawsuit against him, claiming the paintings contain Alabama trademarks for which Moore has not obtained a proper license. The Alabama press has jumped all over this, vilifying the University for taking a beloved artist, and one of the school's biggest fans, to court over a few thousand dollars in royalties. (Walton, "UA Sues Artist Over Trademark Violation," Birmingham News, 03/23/2005; Finebaum, "Alabama Paints Itself Into a Corner," Mobile Register, 03/29/2005).

Public relations aside, does the legal case have any merit? Moore claims that his paintings, which depict famous moments in Crimson Tide football history, should receive First Amendment protections for free expression and free press. Says Moore, "It is a fact that artists were the first journalists." The University claims, however, that the paintings contain University trademarks that cannot be used without payment of required licensing fees.

There is some precedent on this issue. In 2003, the Sixth Circuit upheld an artist's right under the 1st Amendment to create paintings of historical golf moments over a challenge by Tiger Woods (ETW v. Jireh Publishing, 332 F.3d 915). That case was slightly different, because it dealt primarily with a right of publicity claim, but there were also trademark issues. The court emphasized that the work contained "significant transformative elements" that made it worthy of 1st Amendment protection and minimized the economic impact on Woods' protected right of publicity. Because the work "does not capitalize solely on a literal depiction of Woods" but rather "consists of a collage of images . . . which are combined to describe, in artistic form, a historic event in sports history and to convey a message about the significance of Woods's achievement in that event," it is entitled to "the full protection" of the 1st Amendment.

I believe that a similar argument could be made in this case. Moore is depicting an historical event that contains "significant transformative elements." There is probably also little economic impact on the university's trademarks. In response, Alabama will most likely argue that, unlike in the Woods case, which featured his image along with many other golfers, these paintings depend on the use of Alabama trademarks. Without the Alabama name, colors and logo, there would be no painting.

In addition, what of Moore's argument that he is a journalist and his work is protected by the guarantee of a free press? If these paintings make him a journalist, does this not also open the door to bloggers, street artists, and anyone else who depicts an historical event, no matter the form? I do not know if courts will be willing to make such a leap. Are there any cases that speak to this? If anyone is aware of one, please let me know.

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