Artist, 'Bama Collide over Trademark Issues

Daniel Moore's 'The Catch' is a work in progress. i i

Daniel Moore's latest painting is The Catch. hide caption

itoggle caption
Daniel Moore's 'The Catch' is a work in progress.

Daniel Moore's latest painting is The Catch.

Artist Daniel Moore's lifelike depictions of University of Alabama football are a big hit with Crimson Tide fans. But the school is suing for trademark infringement. Moore and copyright lawyer Rebecca Tushnet speak with Debbie Elliott.

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DEBBIE ELLIOTT, host:

A battle over intellectual property rights is brewing between a well-known sports artist and a university. For the past 25 years, Daniel Moore has been painting vivid lifelike action shots. His work has appeared on the cover of Sports Illustrated and you're likely to find one of his paintings on the wall of many college football fans, but it's his depictions of the Crimson Tide, the football team of his alma mater, the University of Alabama, that have landed him in the courts. The university has sued him for violating its trademark and Moore has countersued, arguing the school is stepping on his First Amendment rights. Daniel Moore joins us from member station WBHM in Birmingham.

Hello.

Mr. DANIEL MOORE (Artist): Hello, Debbie.

ELLIOTT: So take us back to the beginning of this dispute. You've been doing this for a long time. When did you find out the University of Alabama wasn't happy with it?

Mr. MOORE: I first found out that the university filed lawsuit on March the 18th when I received a fax out of the blue that pretty much said that the board of trustees at the University of Alabama were suing me for trademark infringement. They are claiming that they have rights in their uniforms and in their colors which are not trademarked but they're claiming there are some implied rights there. And if they were to win this lawsuit, they would want me to license everything that I painted that involved Alabama sports. And I feel like my paintings are journalistic in nature in that they document sports history. So, therefore, since 1979, I've been operating under the assumption that I am painting under the same protection that journalists are afforded under freedom of the press.

ELLIOTT: We should mention that we've contacted the University of Alabama and they say they're not going to comment because it's pending litigation, but in a statement, they say that you were at one time actually paying a licensing fee but then you stopped. What changed?

Mr. MOORE: In 1991, the university celebrated its centennial football and I wanted to create a painting that commemorated that event. Now because I desired to utilize a trademark that the university owned outside the parameters of the artwork--in other words, outside the image area--but...

ELLIOTT: So you got your painting and then up kind of outside that white border is where you've stuck the logo. Is that--am I understanding that right?

Mr. MOORE: Well, yes. That would be correct and then, of course, used that same logo in advertising and in packaging. I, therefore, licensed the print through the university. Now that was the first one after 10 years that I licensed and it was because I chose to license it as a marketing decision and for aesthetic enhancements outside the image area of the print.

ELLIOTT: Do you think your case has ramifications for other artists?

Mr. MOORE: Most definitely it does. First, I think a public university should be zealous in protecting the rights of professors, thinkers, writers and artists, and when a university sues an artist, despite the reams of case law establishing that artist's right to create and sell artworks based on historical events, then my feeling is that it's lost sight of its mission.

ELLIOTT: Daniel Moore is a Birmingham sports artist. He joined us from the studios of member station WBHM in Birmingham.

Thanks for being with us, Mr. Moore.

Mr. MOORE: Thank you, Debbie.

ELLIOTT: We turn now to Georgetown University Professor Rebecca Tushnet. She's a lawyer and expert in intellectual property law.

Hello, Professor Tushnet.

Professor REBECCA TUSHNET (Georgetown University): Hello.

ELLIOTT: You've just heard Daniel Moore's concerns about the free speech issues at stake here, and as we noted, the University of Alabama is not commenting on the case. But in its lawsuit, the university claims it is their responsibility to protect their trademark. What exactly are the issues here?

Prof. TUSHNET: Well, the basic issue from the university's perspective is whether people who look at one of his prints or paintings would think that the university sponsored it or was endorsing it or was in other ways officially associated with it and might even think the university was making money. But if it's not licensed, then the money that people think is going perhaps to support the university is actually just going to the artist.

ELLIOTT: Now the way I understand it, the university claims that depicting its football uniform, you know, the helmet, the red and white uniform, is a violation of trademark. Other college teams might have red and white uniforms. Exactly what is protectable under a trademark?

Prof. TUSHNET: Well, the question is what people would think when they looked at it. So if they look at a number, a player number that's very well known, maybe they will make that leap, but you're right. If somebody just says, `Oh, that's a red and white uniform,' then you wouldn't have trademark rights in that. There has to be recognition by the consumer. At its core, trademark is supposed to protect the commercial meaning of your mark. When you look at a Coke can, you know that the Coca-Cola Company stands behind it.

ELLIOTT: Now Daniel Moore likens his work to that of a photojournalist who takes a picture for the sports page, for example. He says, `Newspapers sell. I'm selling my paintings. What's the difference?'

Prof. TUSHNET: Well--and there's where I think he's right. We don't want a world in which you have to get a license to show a picture of some newsworthy event just because someone's trademark shows up in it. So if an event happened in Times Square, you want people to be able to take pictures even though there'll be hundreds of trademarks in the picture, too.

ELLIOTT: How do the courts come down when you have a dispute like this that is weighing the right to free speech, the right to show this picture, and the right of a university to be able to license its very popular sports image?

Prof. TUSHNET: Well, in general, the artists have come out fairly well because the courts have been receptive to the point that you can't show what you see or what you imagine without showing the trademarked object. If he was using the logo just alone, you know, if he were trying to sell you a mug with just a logo on it, I think things would be very different. But given that he does the creative work to create this picture, the fact that it shows football players in it is probably under the current case law not going to be a reason to give the university rights.

ELLIOTT: Rebecca Tushnet teaches intellectual property law at Georgetown University. She joined us from member station WETA in Arlington, Virginia.

Thanks so much.

Prof. TUSHNET: Thank you.

ELLIOTT: This week, Daniel Moore released a new painting, the catch from the recent Alabama-Southern Miss football game. You can see it and his other work on our Web site, npr.org.

You're listening to ALL THINGS CONSIDERED.

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