Ken Paulson: Painter’s court win affirms visual free expression

  College football means big money. Amid talk of a possible national playoffs system, we’re reminded of the extraordinary revenue potential of an “amateur” sport.

  Understandably, universities want to maximize their income and protect their broadcast and intellectual-property rights, particularly in a digital age. And yet it was refreshing last week to see a clear First Amendment victory for someone who works in one of the oldest media: paint on paper.

  Daniel A. Moore has been painting famous scenes involving the University of Alabama football team since 1979. His paintings are almost photographic in appearance, capturing key plays and players for the Crimson Tide. For more than a decade, Moore sold paintings, prints and calendars. For years, the university didn’t challenge Moore’s right to paint these scenes and in fact seemed to take pride in his work. In 2001, the school even asked Moore to do a sketch of the university’s football helmet during a nationally televised football game.

  The school has also sold thousands of dollars’ worth of Moore’s unlicensed calendars on campus, and had even issued the artist press credentials in connection with his paintings.

  In 2002, however, the University of Alabama told Moore that he would have to secure licenses for any paintings of Alabama football scenes and he would need the school’s permission to depict Alabama’s distinctive jersey and helmet designs.

  Last week, the 11th U.S. Circuit Court of Appeals held that Moore’s paintings are protected by the First Amendment and would trump any trademark claims by the University of Alabama.

  In its analysis, the court found that such paintings would be protected under the First Amendment unless the use of the trademark images were not artistically relevant or the painting explicitly misled the public about the source or content of the work.

  The uniforms and color scheme are obviously relevant to depictions of the football team and there was never any suggestion by Moore that his work had been endorsed or distributed by the University of Alabama.

  The case proved to be a bit more complex because there had been some previous licensing agreements between Moore and the university. Moore had also produced mugs and other products with some of his images. Still, the court decision was a clear victory for First Amendment rights, affirming once again that paintings, illustrations, photos and other visual forms of expression are fully protected under the First Amendment.

  About the author: Ken Paulson  is president and chief executive officer of the First Amendment Center. Previously, Paulson served as editor and senior vice president/news of USA Today and USATODAY.com.

  This article was published by the First Amendment Center.