Crimson and White IP

There are plenty of David vs. Goliath cases in the world of Intellectual property but the case of Daniel Moore versus the University of Alabama looks to be a decided mismatch.  You see, Daniel Moore is an artist who specializes in painting scenes from Crimson Tide football games.  The University sued Moore seven years ago arguing that it has exclusive rights to its trademark which includes the crimson and white uniforms of the players depicted in the artist’s paintings.

The university believes Moore must buy a license in order to paint, display and sell his  Crimson Tide football art and has spent $1.4 million in legal fees so far battling the pigskin painter, who graduated from Alabama in 1976.   And while the artist sees his work as a form of loyalty to his alma mater, University of Alabama officials, during a meeting in 2002, demanded he pay an 8 percent royalty for both new work and everything university-related he had done since 1979.

Moore and other artists say they have free speech rights to create these images.  On the other side of the argument is the Collegiate Licensing Company.  A spokeswoman for the company told the New York Times the overall retail market for collegiate licensed products is valued at $4.3 billion a year, less than 1 percent of which is in the “art category.”

In 2009, District Court Judge Robert Propst ruled that Moore was prohibited from selling his images on products of a more commercial nature, like coffee mugs and calendars, without obtaining a license from the university, and his ruling was vague on the number of prints in an edition that the artist could create.

This ruling prompted Moore’s attorney Steve Heninger to appeal.   After all, the attorney points out, “All of our art is copyrighted, and copyright gives us the right to do derivative works on coffee mugs, calendars” and other items.

The University is also appealing, claiming that it controls trademark interests in all depictions.

The 11th Circuit Court of Appeals will now decide who owns the crimson and white, which Notre Dame professor Mark McKenna believes is a test case for the Collegiate Licensing Company.  If the University of Alabama wins, “how do we know that, say, Sports Illustrated wouldn’t be able to use a photo from an Alabama football game without the university’s approval?” McKenna wonders.  “For that matter, could they even say ‘University of Alabama’ or ‘Crimson Tide’ in print?”

Not in question in this particular case is whether college athletes own the rights to their own images.  While Alabama and Mr. Moore work their way through the IP legal thicket, no Alabama players that Moore painted are not making a case that they own rights to their image that Moore painted.  But Ed O’Bannon, basketball star for the 1994-95 national champion UCLA Bruins has filed a class action lawsuit against the NCAA claiming the NCAA is illegally profiting from the use of athletes’ photos and images without the athletes’ consent and without paying them any compensation.

O’Bannon’s filing is the third class action suit filed against the NCAA.  Lawyers.com explains,

These lawsuits claim that despite NCAA bylaws prohibiting the commercial use of players’ names or likenesses, the NCAA makes millions of dollars by licensing the players’ images for use in television broadcasts, advertising, DVDs, video games, clothing and other merchandise. The players say they never agreed to this commercial exploitation of their names and likenesses. They say it’s not fair that they haven’t received a dime of the licensing fees.

While the NCAA makes money selling DVD’s and TV re-broadcasts of the 1995 title game where he scored 30 points and pulled down 17 rebounds, as well as from his image in a video game, O’Bannon himself is selling cars in Las Vegas.

Oh what a tangled web intellectual property laws weave.  As Stephan Kinsella explains, it’s all evil and should be abolished.

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