FROM ARTIST DANIEL A. MOORE
SYNOPSIS OF COURT FILINGS
The University of Alabama Board of Trustees filed suit against Artist Daniel A. Moore and his publishing company, New Life Art, Inc., on Friday in U.S. District Court. The suit is centered around trademark issues and licensing issues that Moore and NLA breached UA claims. UA's position is that all art prints that depict its registered trademarks, or even the implied, unregistered marks of the school's uniforms and/or colors within the confines of the artwork itself must be licensed through UA.Moore and NLA answered by denying all charges filing a counter-suit on Monday in U.S. District Court. Moore's counter-suit alleges: Count 1, that defendants violated the Visual Artist's Rights Act, 17 U.S.C. §106(A). Count 2 of Moore's counter-suit seeks relief for Rights Under the Lanham Act, 15 U.S.C. §1051(A) through a Declaratory Judgement, with its underpinnings founded in the Constitutional Rights of Freedom of Speech and Expression and Freedom of the Press. Count 3, Defendants are guilty of Intentional Interference with Business Relations. Count 4, Defendants have violated the Alabama Deceptive Trade Practices Act. Count 5, Defendants are in violation of 42 U.S.C. §1983 in that they have violated the civil rights of Moore under color of authority and law.
"True art speaks a universal language that transcends cultural bounds. It documents history; it predicts the future. It soothes; it irritates. It celebrates; it mourns. It is real; it is abstract. It is loud; it is quiet. It provokes questions; it shouts answers. And on and on it goes. But above all, art communicates. . ."
For more than 26 years I have been journalizing and commemorating The University of Alabama’s excellent football tradition through my original paintings that are produced and sold as Limited Edition Fine Art Prints. These Fine Art Prints are hung proudly by their owners on walls in homes, offices and other business establishments throughout Alabama and beyond where they receive millions of exposures each year. In each viewing, I believe the image of the University of Alabama, my alma mater, is represented in a positive light and that the artwork reflects well on the University of Alabama's Athletic Department.
Webster’s Unabridged Dictionary defines "journalism" in part as:
4. The presentation of events or ideas (as in a painting or play) in a manner regarded as similar to that of journalism.
I believe that my Fine Art Prints portraying historic sporting events are Constitutionally protected by a two layer shield—The Freedom of Speech and Freedom of the Press. On the Free Speech layer, the Supreme Court remarked in one case that "the Constitution looks beyond written or spoken words a mediums of expression" . . . and noting that examples of painting, music and poetry are "unquestionalby shielded" by the First Amendment. On the Free Press layer, it is a fact that artists were the first journalists, predating the written word, i.e., cave paintings documented the cultures of many past civilizations by telling stories and conveying information through pictures. Thanks to our Constitution's First Amendment clause of Freedom of the Press, newspapers, magazines and other forms of media do not have to receive permission to run or post photos or drawings of a football game in its given publication, even if that photo or drawing contains a registered trademark. In those instances, the use of that mark is considered a "fair use," and no permission is required.
For over twenty years, the University of Alabama effectively promoted, validated and enjoyed my standing and role as "journalist." Throughout those years, the UA Media Relations Department supplied me with media and sideline passes for Alabama's home football games. This allowed me not only the opportunity to garner necessary photographic references that aided me in the painting process, but it also supplied me with insight and empathy for the emotions, strategies and physical prowess of the game from an "on-field" perspective. As an artist, I seek to convey all of these aspects in my work.
This good, professional relationship with Media Relations continued up until January 17, 2002, at which time I met with Dr. Finus Gaston, at his insistence, in his office. The subject of the meeting concerned licensing issues as they related to works of art. Dr. Gaston conveyed the University’s position as being that a mere depiction of an Alabama sports uniform in a Fine Art Print is cause enough for the work to be subject to licensing—even if it did not include a depiction of a registered trademark of the school itself. He told me that UA believed that all my prints depicting UA athletics should be licensed and clearly conveyed an "all or nothing" approach.
At that point, I referenced Judge Patricia Gaughan's 4/10/2000 ruling in ETW v. Jireh Publishing (Tiger Woods vs. Rick Rush), a case regarding similar issues. This decision clearly states that artwork and art prints are recognized by the Supreme Court as forms of speech; and that even the use of actual trademarks within the confines of such artwork is a "fair usage" and thus, not subject to licensing fees otherwise imposed by the owners of such marks. Dr. Gaston noted that Judge Gaughan's decision was then under appeal and suggested that federal judges in this district might have a differing opinion, and thus, held firm to UA's position on the matter.
I expressed to Dr. Gaston my full agreement and support of the concept of licensing when it is required under law. And, I went so far as to explain that, in my opinion, if a mark was used on an art print, but not within the context of the artwork itself (i.e., embossed on the white margin of the print), I would concede the whole print would be subject to licensing—consistent with the reasoning for my licensing a few prints in the past. In other words, my position was (and is) the boundaries for "fair usage" of a mark would extend to the edges of the image and not to the edges of the print, proper, and that a print should be licensed if a trademark was utilized on the print's packaging or the advertising thereof. I emphasized that the whole matter was one of principle and of constitutionally protected rights and that I was not trying to "dodge" legitimate licensing. I went on to say that I foresaw instances in the future where licensing would, again, be desirable (from a business or aesthetics standpoint) and that I might utilize a mark owned by UA in the margin of a print—as I had done in the past—that would be subject to licensing by UA.
Furthermore, I expounded to Dr. Gaston the justification of my position from the perspective of a journalist. In short: When a trademark, or legally protected mark, appears within the parameters of my original artwork merely as the incidental byproduct of accurately documenting and/or rendering an historic event (and is not used to indicate the origin of the product), then, such usage would have the same protection that newspapers, magazines, television and other journalistic media are afforded under the Freedom of the Press clause of the First Amendment.