"Judge rules artist Daniel Moore needs no University of Alabama license for paintings

[CapitalTider]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

To my knowledge, and I invite corrections, there is no difference between Alabama's uniforms and other team's uniforms. Both contain trademarked "indicia." The ETW case that you refer to was released in 2003. Alabama and Moore's falling out started in 2000. Though your position begs the question: If you were paying someone money because you thought you had to but then you found out you didn't have to, would you keep paying them?

Sure there is, the "T" on the side of UT's helmets is trademarked, the "AU" logo on the Auburn helmets is trademarked, etc. Aside from the Nike Swoosh (tm) there is nothing on the Alabama uniforms that can be trademarked. A white stripe is too common as are basic Arabic numbers.

My recollection from years ago when this case began is that Moore paid royalties to other schools and paid them to UA until 2000 or so when this disupute arose.

Would I continue to honor a contract that I felt like I had a legal argument to void? I honestly don't know, I suppose it would depend on a lot of factors, i.e how strongly I felt about my legal position, whether the contract was particularly onerous, whether I could use this position to simply renegotiate a better deal, whether I felt any moral obligation to continue the arrangement, etc. I think if I were profiting from someone else's intellectual property I would feel at least a moral obligation to compensate them somehow. I certainly wouldn't claim to be a victim or hero for breaking that contract.

Where are all the people who were outraged over coach's breaking contracts? Is there a different standard for artists breaking contracts than for coaches?

 

[AngryEwok]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

I've always wondered, what does it cost Daniel Moore to produce one print? That is going to vary from print to print, but the suggestion that some have made that the prints are a "xerox" of the painting is wrong.

I cannot speak for Daniel Moore, but I am an artist and I work for an artist and truth be told - lithographs, when printed in bulk, are no more expensive than getting color copies at Kinko's. There is no comparison in quality, obviously. But yes, us artists make a killing off of lithographs IF THEY SELL. It's a gamble, though - there is a lot of overhead to begin with.

Kinko's are the ones making a killing, though!

 

[NYBamaFan]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

...Where are all the people who were outraged over coach's breaking contracts? Is there a different standard for artists breaking contracts than for coaches?

I agree with this part - if Moore entered into an agreement with UA (I am not familiar with the arrangements in question), he should have honored it. Finding out that he could use a legal loophole to get out of it might make it legal, but it wouldn't make it the right thing to do.

Of course, when that contract expired, he would be free to follow a different course...

 

[CapitalTider]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

Just to clarify, I don't have any personal dislike or animosity towards Daniel Moore. I just felt that many here were immediately blaming the University (a University that many claim to love and support) and siding with Moore without knowing or understanding the full situation.

I think the judge did a good job of playing Solomon and splitting the baby enough that both sides will hopefully come to a mutually agreeable solution. However, the University has a problem going forward, especially with this precedent sitting out there. Frankly, it existed before the precedent but the precedent just makes it worse. The classic uniforms that we all know and love, the court just sided with Moore in that they are not distinctive enough to warrant a trademark. Now anyone can bootleg anything in an Alabama uniform and the University cannot stop them. Sure they work out a deal with Moore, what about the thousands of others that have now been given a free license? Hopefully as poetic justice we'll start to see Chinese knock-offs of Moore prints. The University may be forced to change the uniforms to something that can be trademarked to protect its interests. I don't know if any of us would like that, I know I won't.

Frankly the University was in an unwinnable position. Moore stopped paying royalties based on the position that the Alabama uniform could not be trademarked. Letting that slide was about more than just the royalties from Moore; it opened the door to thousands of other people taking the same position and doing the same thing. So they decided to fight, of course that has its risks to. If you lose, you now have a court decision upholding the position you were against giving thousands of others free reign to use your intellectual property. So other than possibly bungling the negotiations with Moore (which I'm not saying happened, just that that is a possibility) I'm having a hard time seeing what the University did wrong in this instance. Maybe not adopting some garish Oregon type uniform.

 

[NYBamaFan]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

CapitalTider - I get your point, but UA loses nothing in this case. They can create and market anything that they want. They can come up with a particular mark to indicate that it is "authentic" UA merchandise to devalue "knock-offs". Moore can no longer sell that type of merchandise.

Moore gets to keep painting. UA gets all other merchandising rights back. Both win, but UA more than Moore, because this represented a large percentage of Moore's sales revenue. Moore will now either have to greatly increase the quantity of Bama work completed (which will drive down the value of his work), accept lower Bama revenue (which would mean focusing on other teams), or come back to the table.

 

[bamabryan]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

The University may be forced to change the uniforms to something that can be trademarked to protect its interests. I don't know if any of us would like that, I know I won't.

This is not going to happen. :smile:

 

[bamabryan]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

Does anyone know how much an average royalty would be for something like this?

It's been years, but I read in the 90's that Moore was paying I believe a 7% or 8% royalty. Does this sound right?

 

[bamabryan]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

The initial news articles acted as if this was a slam dunk victory for Moore. It wasn't. The Judge didn't decide this explicitly on constitutional grounds, but he factored in the artistic aspect. Moore gets to keep his paintings. Alabama gets to keep its merchandise. The fact that Daniel Moore can't just continue to produce merchandise is an acknowledgement of Alabama's ownership of its trade dress and uniforms. It is the absolute correct decision. If the University had just sued to secure its merchandising rights, this case would have been over with five years ago and wouldn't have split fans like it did.

Very well said.

I agree with you this was the correct decision.

You also hit on another excellent point about the split fan base. This is very true. It is a shame that this situation caused our fans to take sides. Most of us here on Tide Fans are all on the same team.

This thread has gone better than one of the other Daniel Moore threads from a couple of years back that got locked.

 

[CapstoneTider]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

I was trying to think up some new untapped revenue streams, any help appreciated.

Charge a nickel every time someone says "Roll Tide"

Charge a one time logo memory flashback charge, so you can visualize the
teams logo's in your head without feeling guilty, or someone else making you feel guilty.

Charge a flat rate of a penny a letter on Alabama themed websites.

Charge twenty five cents for every "Yeah Alabama" whistled

Turn every checker board table at the county courthouse or local drugstore into Tide Pride tables with tier levels and charge $1 a game.

 

[bamafan2102]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

Should DM give SOMETHING to the University? I think so. Has he given SOMETHING to the University? We don't know. He very well could have been donating to the University for years. I own 10 of his paintings and will have 11 after the new one is done. To me, it's about a moment in time. It's about every time I look at that painting (xerox or whatever) I will remember jumping up and down with my family or being with good friends, or going crazy at the stadium. I can look at each of the pictures that I have and tell you where I was at that time. I hate that both sides can not come together, but either way it will not stop me from buying DM's pictures. I don't care what they are worth, because they are not for sale.

As with all other things in life, if you don't like it don't buy it. Don't give me the bull crap of, "This hurts my beloved University....". The University is doing just fine with or without DM. There are record numbers of students arriving each year with tuition going up every chance they get. The University makes MILLIONS from the new TV package. If anyone should get money from these paintings, it should be the students that are involved. Just my two cents.

 

[CapstoneTider]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

Always rousing the rabble, stirring the pot, whacking the hornet's nest...

So you're saying you're part of some sort of hornet's nest coalition?

 

[Clubfitter]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

Tuscaloosa News has a good editorial on the subject. It is a well written opinion and I think it is good advice to UA. We probably need to walk away from the issue. We're not going to change it.

UA needs to walk away from Moore lawsuit


Published: Wednesday, November 4, 2009 at 3:30 a.m.
Last Modified: Tuesday, November 3, 2009 at 10:32 p.m.


The University of Alabama administration has signaled that it will appeal a judge's ruling in favor of sports artist Daniel Moore in a lawsuit alleging trademark infringement. UA would do better to walk away from this one.

U.S. District Court Judge Robert Propst disagreed with just about every argument that UA put forward, except the common agreement that Moore's work is fine art. Importantly, the judge concluded that 'the public interest entitles the defendants to prevail.'
That should be the end of it, but most likely it won't. 'As Judge Propst has stated repeatedly, these issues will ultimately be decided by the 11th Circuit Court of Appeal,' UA spokeswoman Debbie Lane said after the lower court's ruling was announced.
Moore has made a name for himself, and thriving business, from his paintings and limited-edition prints of football plays that are burned into the memory of Crimson Tide fans. The images are so iconic that UA has begun to imagine that it has some sort of ownership right to them.
In its lawsuit, UA claims not just to have trademark rights to its emblems — the stylized 'A' for Alabama, its drawing of 'Big Al' the elephant, the seal of the university — but even the color crimson. Never mind that at least nine other Division 1A football programs incorporate crimson into their color schemes. New Mexico State, Utah and Harvard universities use crimson
and
white.
UA has argued that Moore infringed on its property by painting players in uniform. That's pretty hard to avoid when the subject of the paintings is great football plays. Fans don't buy the paintings because they want nice images of a UA football uniforms hanging on their walls. They are interested in what the paintings truly depict — great achievement on the field of competition.
As great as the UA team is playing this year, you can't trademark greatness.
Part of UA's complaint against Moore is a back-handed compliment: that Moore's painting style is too realistic and accurate. As the judge correctly notes, 'That reality is what adds strength to the degree of artistry, distinction and secondary meanings of his paintings.' In other words, Moore's talent adds something.
UA has come down on the wrong side of artistic expression and First Amendment rights. In doing so, at the same time that Southeastern Conference is placing new restrictions on how the news media can cover games, the university appears overbearing.
The university has profited immensely from sports fans. Sports fans tend to come down on Moore's side in this argument, and for some of the same good reasons as Judge Propst.

 

[CapitalTider]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

The Alabama helmet, as a whole, is almost certainly trademarked.

That is absolutely incorrect. If any part of the UA uniform or helmet were trademarked, this suit never would have happened and/or the court would have granted summary judgment to the University. A party cannot profit from someone else's trademarked intellectual property without permission.

Even if it itself is not a trademark, that doesn't mean you can just go around making crimson helmets with white stripes and numerals and get away with it.

Why not? What law besides intellectual property law, i.e. copyright, trademark, etc. prohibits it? None.

The Judge didn't decide this explicitly on constitutional grounds, but he factored in the artistic aspect. Moore gets to keep his paintings. Alabama gets to keep its merchandise. The fact that Daniel Moore can't just continue to produce merchandise is an acknowledgement of Alabama's ownership of its trade dress and uniforms.

This misses the point, the court explicitly decided that Alabama's uniform was not a trademark. You are correct under the artistic license portion, but it still leaves the University open to further exploitation of its intellectual property. It may stop Daniel Moore from doing much, but what about the next hundred or more that decide to exploit this?

 

[BamaHoya]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

This misses the point, the court explicitly decided that Alabama's uniform was not a trademark. You are correct under the artistic license portion, but it still leaves the University open to further exploitation of its intellectual property. It may stop Daniel Moore from doing much, but what about the next hundred or more that decide to exploit this?

The policy underlying trademark protection is completely different from that underlying purer intellectual property rights such as copyright. Copyright protects a person's interest in something he created---his "intellectual property." Trademark laws, on the other hand, are designed purely to protect consumers and ensure fair business competition. I can't start a fast food restaurant and put the golden arches on top of it, because then I would be tricking potential customers into thinking I was selling McDonalds' products when in fact I was not. If I want to paint a picture making fun of McDonalds and display it in a museum, I can, because in that case there is no consumer confusion.

This case boils down to one issue: Does Moore's use of Alabama's "trade dress" (i.e. crimson and white color scheme and uniforms) in his paintings deceptively lead potential buyers to believe that the University is somehow involved in the production and sale of the paintings? Even if the answer is yes, Moore can still argue that his First Amendment right to artistically record historic football moments trumps the University's trademark interest. If and when this case is appealed, the Eleventh Circuit will have to balance those interests in making its decision.

 

[InsaneMustang]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

People ask why is Moore not willing to give back. But why does giving back always refer to monetary exchanges? Isn't he giving back enough by painting images of an extreme accomplishment, whether personal or team related?

As a former student, I can't tell you how many DM Paintings I've seen in Professor's office, and around the campus in different buidlings, dorms and houses.

We are lucky to have Daniel Moore prints that are of such a high quality. I am honored to have his work in my living room.

 

[CapitalTider]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

Thanks for the edification on the trademark laws, I only have a rudimentary understanding of them; I'm a tax lawyer not an IP lawyer.

My primary point and complaint is this and no one has pointed out if there is a flaw in this logic. Back when the trial first started, I read that Moore had to pay royalties to other schools because their uniforms contained a trademark, e.g. the orange "T" on UT helmets. Because the UA uniforms do not contain something that is trademarked and based on the Tiger Woods case he stopped paying royalties to UA but not to other schools with trademarked emblems on their uniforms. The portions quoted from the decision and editorial seem to bear this out, notice that the script A is trademarked, as is Big Al, as is the University seal; none of which are on the uniforms.

So Alabama's classic uniforms are hurting, at least to some degree, the University's rights, i.e. they are in a worse position than say a UT. Moore exploited this for his own profit, which is a sound legal strategy but something I am morally offended by. If all of that is incorrect I would really like to know, but thus far I haven't seen or read anything to the contrary.

 

[AngryEwok]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

That is absolutely incorrect. If any part of the UA uniform or helmet were trademarked, this suit never would have happened and/or the court would have granted summary judgment to the University. A party cannot profit from someone else's trademarked intellectual property without permission.

You are actually wrong.

 

[TideEngineer08]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

Thanks for the edification on the trademark laws, I only have a rudimentary understanding of them; I'm a tax lawyer not an IP lawyer.

My primary point and complaint is this and no one has pointed out if there is a flaw in this logic. Back when the trial first started, I read that Moore had to pay royalties to other schools because their uniforms contained a trademark, e.g. the orange "T" on UT helmets. Because the UA uniforms do not contain something that is trademarked and based on the Tiger Woods case he stopped paying royalties to UA but not to other schools with trademarked emblems on their uniforms. The portions quoted from the decision and editorial seem to bear this out, notice that the script A is trademarked, as is Big Al, as is the University seal; none of which are on the uniforms.

So Alabama's classic uniforms are hurting, at least to some degree, the University's rights, i.e. they are in a worse position than say a UT. Moore exploited this for his own profit, which is a sound legal strategy but something I am morally offended by. If all of that is incorrect I would really like to know, but thus far I haven't seen or read anything to the contrary.

The script A actually appears on the Alabama uniforms now and have since the early 2000s. Whether or not they are in the paintings, I am not sure. I'll have to check. The logo is at the bottom of the V-neck on the jerseys. It's small, but it's there.

 

[CapitalTider]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

The script A actually appears on the Alabama uniforms now and have since the early 2000s. Whether or not they are in the paintings, I am not sure. I'll have to check. The logo is at the bottom of the V-neck on the jerseys. It's small, but it's there.

You're right, I'd forgotten that. Maybe that addresses the issue.

 

[CapitalTider]

Re: "Judge rules artist Daniel Moore needs no University of Alabama license for paint

You are actually wrong.

On what part? I really don't think the helmets are trademarked. Doesn't the opinion say that the uniform is not a trademark? Are you saying it is legal for a party to use another's intellectual property for profit? Just curious as to where I am wrong.