The U.S. Court of Appeals for the 11th Circuit on Monday issued a decision strongly backing the rights of an artist  whose paintings depict University of Alabama Crimson Tide football players -- even though he ignored the university's request that he pay for a license to use such images.
On many of the issues in the case, the appeals court found that Daniel A. Moore has First Amendment protection to depict the players, and that the university's claims that there would be market confusion about whether the works were official products of the university were unfounded.
The case could be important beyond Alabama: Twenty-seven universities with big-time athletics programs -- from Alabama's in-state rival Auburn University to national powerhouses like Duke University, the University of Kentucky and the University of Texas -- backed Alabama's losing appeal, saying that they too wanted control over the use of their athletes' images in uniform.
Monday's decision has many parts, and one portion (dealing with smaller images, such as those on mugs) will go back to a district court for further review.
But most of the decision backed Moore on key issues.
"Like other expressive speech, Moore’s paintings, prints, and calendars are entitled to full protection under the First Amendment," the court decision says.
Further, the court rejects the idea that just because Alabama holds trademarks on its uniforms, Moore can't depict them. "The depiction of the university’s uniforms in the content of these items is artistically relevant to the expressive underlying works because the uniforms’ colors and designs are needed for a realistic portrayal of famous scenes from Alabama football history. Also there is no evidence that Moore ever marketed an unlicensed item as 'endorsed' or 'sponsored' by the university, or otherwise explicitly stated that such items were affiliated with the university. Moore’s paintings, prints, and calendars very clearly are embodiments of artistic expression, and are entitled to full First Amendment protection," the decision adds.
The appeals court elaborates by endorsing the idea that "the extent of his use of the university’s trademarks is their mere inclusion (their necessary inclusion) in the body of the image which Moore creates to memorialize and enhance a particular play or event in the university’s football history. Even if some members of the public would draw the incorrect inference that [the university] had some involvement with [Moore’s paintings, prints, and calendars,] ... that risk of misunderstanding, not engendered by any overt [or in this case even implicit] claim ... is so outweighed by the interest in artistic expression as to preclude" trademark violations.
Many First Amendment groups (including a group of law professors ) backed Moore. But the brief filed by 27 universities (the "amici" in the quotation that follows) suggested that the revenues they earn from athletics and the institutions' reputations could be harmed by a loss for Alabama in the appeals court.
"Amici are major universities largely dependent on philanthropy – the generosity of multiple donors – to achieve their educational and related goals. The reputation or 'image' of the amici is critical in maximizing this philanthropy. Amici control their image, in part, by controlling those symbols that identify and distinguish them to the public – viz., their trademarks and service marks, which are typically presented in the specific school colors of each university, as well as those colors themselves," the brief said.
The universities added: "The 'product' the universities provide under their marks is quality education, enhanced by myriad extracurricular facets of the university experience: centuries of tradition, unique quality of campus life, and activities carried out by students and enjoyed by the wider community. Among the highest profile in the latter category are collegiate sporting events."
The University of Alabama could not be reached for reaction to the decision.