Visual artist Daniel Moore won at the trial level against the University of Alabama's lawsuit alleging Moore's original fine art violated the University's trade dress rights in the school’s football uniform and crimson color.
The litigation begin in 2005 after numerous years of an amicable relationship between the parties. In a very large nut shell, from 1991 to 2000 there was a licensing agreement in place allowing Moore to reproduce and offer for sale certain visual works that included “indicia” of the University/Football team. “Indicia” was defined to include logos, seals, symbols and “Colors: Crimson PMS 201 Gray PMS 429.” In none of the agreements were “uniforms” included as “Indicia.”
After the agreement ended, Moore continued to create fine art visual works that included the football team, and uniforms --- but not “Indicia.” Moore’s defense, “if I am not including ‘Indicia’ there is no reason to pay a royalty.” The University claimed common law trade dress rights in the team’s uniforms and crimson color and that Moore’s paintings infringed upon such trade dress rights.
The Opinion is long but does a good job of setting out the arguments. The case in my mind really turns on the decision in ETW Corp. v. JIREH Publishing, Inc., 332 F.3d 915 (6th Cir. 2003). ETW is the Tiger Wood’s case where the publisher distributed limited edition prints of Tiger Woods. The court in ETW made it clear that First Amendment freedom of express trumps publicity rights when the work is an original or true limited edition fine art, works of art. If the were talking about coffee mugs and t-shirts, a different decision would have been rendered.
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