Painting Football Teams, Writing Harry Potter, And Property Rights

"The Kick," by Daniel A. Moore

Via Beat The Press, I learn that the University of Alabama is suing artist Daniel A. Moore for using the colors red and white. From the New York Times:

Mr. Moore’s paintings, reproduced in prints and on merchandise, violated the university’s trademark rights, the suit said. It asked a federal judge to forbid him to, among other things, use the university’s “famous crimson and white color scheme.”

The University isn’t suing Moore because it doesn’t like how he paints their football team. The University is suing because Moore’s paintings are available on merchandise (calendars, coffee mugs, etc.), and the University — which has its own football-related calendars and mugs to sell — is hoping to wipe out a competitor.

I think this is censorship, both in the technical sense of the government (through the court system) shutting people up, and in the broader sense of unfair duress being used to shut people up. U of A football games are public events, and an important part of local culture; as an artist, Moore has every right to paint about football games. The U of Alabama owns their team franchise, but they don’t own Mr. Moore’s mind, or Mr. Moore’s paintbrush; if they want to protect themselves from the horror of artists painting what they see, they should stop allowing the public to view their games.

* * *

Arguably, if the Court rules in the University’s favor, that will be viewpoint based regulation.1 If Moore had done critical paintings of the U of A football team — had he, for example, created paintings criticizing the football team (justly or unjustly) for racism, sexism and homophobia — then he would have been entitled to strong First Amendment protection. But because his paintings boost the team, rather than criticizing it, it’s quesitonable whether Moore’s protected by the first amendment.

This is true of all sorts of fan creations, not just sports paintings. Henry Jenkins writes:

One paradoxical result [of current copyright law] is that works that are hostile to the original creators and thus can be read more explicitly as making critiques of the source material may have greater freedom from copyright enforcement than works that embrace the ideas behind the original work and simply seek to extend them in new directions. A story where Harry and the other students rise up to overthrow Dumbledore because of his paternalistic policies is apt to be recognized by a judge as political speech and parody, whereas a work that imagines Ron and Hermione going on a date may be so close to the original that its status as criticism is less clear and is apt to be read as an infringement.

[…] A key point here is that I regard all or at least most fan fiction to involve some form of criticism of the original texts upon which it is based — criticism as in interpretation and commentary if not necessary criticism as in negative statements made about them.

The public has a right — or it should have a right, anyway — to react to and interpret the culture surrounding us, including by making culture of our own in response. This has become especially important in the internet age. Before the net, fans still created “response art,” in zines and in APAs; but this art was for the most part hidden from the view of corporate legal departments.

Jenkins coins a phrase that I think should spread:”The public right to cultural participation.”

For me, the phrase, the public right to cultural participation is a key concept underlying the book’s discussion. If I had my way, the right to participate would become as important a legal doctrine for the 21st century as the right to privacy as been in the late 20th century. I argue elsewhere in the book that a right to participate might be abstracted from the combined rights listed in the First Amendment and the right to participate would include the right to respond meaningfully to core materials of your culture. In that sense, I might go beyond our current understanding of fair use.


[Crossposted at Creative Destruction. If your comments aren’t being approved here, try there.]

  1. Viewpoint based regulation is “The regulation of expression because of the particular opinion or position that expression supports or rejects. Viewpoint based regulations are unconstitutional.” []
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13 Responses to Painting Football Teams, Writing Harry Potter, And Property Rights

  1. Pingback: jennhi

  2. 2
    Sailorman says:

    I think this is censorship, both in the technical sense of the government (through the court system) shutting people up, and in the broader sense of unfair duress being used to shut people up. U of A football games are public events, and an important part of local culture; as an artist, Moore has every right to paint about football games. The U of Alabama owns their team franchise, but they don’t own Mr. Moore’s mind, or Mr. Moore’s paintbrush; if they want to protect themselves from the horror of artists painting what they see, they should stop allowing the public to view their games.

    First: most of the legal analysis I’ve read about this strongly suggests that this suit by the U will lose. So this is probably moot.

    But in any case: Do you understand the concept behind IP law and copyright, and patent, and…? I think your position is somewhat extremist, but I”m not sure if you have adopted it through analysis of the system, or through a cursory examination.

  3. 3
    Ampersand says:

    Sailorman, I’ve given the system a more than cursory examination, but I’m not a lawyer. I certainly agree that my position on copyright and IP is extreme, relative to the norm. :-)

  4. 4
    Sailorman says:

    I wasn’t asking because I think you’re nuts; I was honestly asking because it’s a difficult conversation to have with someone who knows little about the field. But if you know what the “norm” is then you’re probably not in that category.

    Though you may not be as extreme as you say ;) To the degree that you think THIS particular suit is balls-up idiotic, you’re right in the norm, I think. And to the degree you think the ultra-extension of copyright law (e.g. disney) is problematic, and quite possibly violative of the spirit and logic behind copyright protection, you’re also probably in–or near–the norm.

    I suppose we’d disagree on whether it’s unjustifiable censorship. I like patent and copyright laws (properly used) as ways of encouraging action and protecting folks from unscrupulous copying. You may rethink it if you realize that copyright law can be extremely useful to a poor artist: without it, what’s to prevent a publishing house from simply buying a copy of “blair witch” for home viewing, and making their own millions off it?

    And we’d DEFINITELY disagree on the viewpoint-based issue. Viewpoint-based is sort of a term of art in the law, which pretty much means you have to be able to identify a certain viewpoint OUTSIDE the confines of a particular case. So it it might be a problem to discriminate against christians, atheists, liberals, anarchists, republicans, etc.

    But I think the way you’re using it is wrong, because you seem to be suggesting that it’s case-specific. Because the law with respect to critical/positive works can be generally stated (critical ones may get a tad more protection) AND because the law applies to all works, it’s not a viewpoint specific law.

    If I write a pro-Bush book and you want to use it: you’ll get more leeway if you’re critical than if you copy. If I write an anti-Bush book and you use it, you’ll get more leeway if you’re critical than if you copy. Because the law protects both views depending on the underlying facts, it’s not a viewpoint based law.

  5. 5
    Barbara says:

    The U of A has completely jumped the shark on this one. As I understand it, they don’t want the guy painting football scenes using red and white or something of that order. I haven’t read their complaint or briefs, but it strikes me as being completely crazy. However, the overall issue of participation really boils down to how much protection a copyright holder should be entitled to, since the purpose of copyright is to maximize expression — fair use and time limits are a way of recognizing that undue protection of copyright holders’ interests can ultimately harm the free expression of ideas. I agree that Congress has gone overboard in protecting the rights of copyright holders.

  6. 6
    Brandon Berg says:

    I could be wrong, but it seems to me that your cartoon misrepresents the issues. Isn’t copyright fairly narrowly defined as the exclusive (aside from fair use) right to copy works? Copyright doesn’t prevent people from talking about, reviewing, or criticizing Disney cartoons—it just prevents them from making and distributing copies.

    You seem to be talking about trademark, which AFAIK companies have always been allowed to maintain perpetually. And trademark doesn’t prevent people from talking about Disney cartoons or characters, either—it just (in theory) prevents them from creating derivative works which are likely to be confused with works created or authorized by Disney. In practice, the courts may interpret this too broadly, but I really don’t see what the big deal is. Why can’t people come up with original characters, or at least alter them a bit?

  7. 7
    free speech says:

    If I may say so, this case is not about copyright, unless it is that of the artist’s, used as a defense of his own IP rights in the underlying work. U of A cannot copyright a moment in time or a public historical event, as I understand it. It is the artist who owns the copyright to the works of art because he documented an historical event and created his own unique compositions, overlaid and imbued with all the creative “tools” at artists’ disposal when they paint.

    Much like a court-room sketch artist, he has visually interpreted an actual event, using his own editorial “style.” His inclusion of the uniforms and colors thereof and any actual trademarks shown are used in a purely descriptive manner and they are not used to denote the source of origin, which is the primary function of a trademark. He clearly uses his signature for that purpose.

    I have read one of Moore’s books, “Crimson & White and Other Colors,” in which he goes into depth describing his creative process. Other than composition, which is key, there is lighting, color, texture, form, depth of field, motion, etc. He has used these “tools” to convey feeling, emotion and empathy that is translated to the viewer, which takes the viewer well beyond seeing the play as it actually happened. In an excerpt from the foreword in his book he states, “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. . .”

    I find it fascinating that the writer of the NYT article (perhaps partly due to his own creativity) described the painting of “The Sack” as depicting an “encounter between a Notre Dame quarterback and a human locomotive in crimson and white.” Apparently, the artwork here, according to Moore’s definition of true art, was successful because the writer “heard” what the artist was communicating. I note that the artist did not paint a human locomotive, but might be pleased that the writer saw it that way. And, for some reason, the writer felt moved to use a metaphor, rather than a simile.

    Furthermore, who is to say that the same painting is not a criticism of Notre Dame’s offensive line for missing the block?

    The University’s lawsuit is clearly a commercial attack on our First Amendment Rights and it should be beat back by the courts with a vengeance!

  8. 8
    Sailorman says:


    the principle behind copyright is essentially the principle behind patent: to encourage people to produce and make public beneficial works.

    VERY short history: A while back, the U.S. passed insanely lengthy copyright extensions after heavy lobbying by a host of corporate folks, Disney being one of the paramount proponents of the law. Mickey “should” be in the public domain by now, but isn’t. Many folks (including me, and, I am sure, Amp) believe the extensions were only a profit issue and didn’t go at all towards the point of copyright. Lots of folks have ragged on Disney for this. As they should.

  9. 9
    Brandon Berg says:

    I know all that, but it doesn’t have much to do with what Mickey’s saying in the cartoon. What he’s describing is closer to trademark than to copyright (but still not a very accurate description of either).

  10. 10
    Barbara says:

    Brandon is right, there are several issues being lumped together, but both flow out of the degree of protection given to copyright holders.

    The first is length of copyright protection — the right to be able to copy something (which really means the unrestricted right to reproduce it in any fashion, including partially). In the case of mickey mouse, if it were in the public domain anyone could use the image for any purpose whatsoever and would not need to be worried, for instance, that WD/ABC would sue them if it disagrees with their viewpoint (which WD/ABC can do when the copyright is in force).

    The second is the concept of fair use, which lets someone use bits of copyrighted material as a contribution to their own work, so long as it doesn’t go overboard. These are nontechnical terms: Fair use is what lets academics, for instance, copy the letters or other works of authors in order to create their own works of biography, criticism, parody or whatever. AMP’s use of Mickey Mouse above would likely qualify as a fair use for the purpose of political criticism. But the degree of use that qualifies as f air is a debatable subject, and unless MM is in the public domain, Amp risks being sued out the wazoo by WD/ABC as noted in the cartoon.

    But my understanding of the U of A situation is that U of A is copyrighting the designs and color scheme of their uniforms (the article wasn’t real clear), so that the painter can’t make money from selling items that reproduce the designs and color schemes of the uniforms. This is extending copyright protection (I think) beyond the beyond — because the painter isn’t making money off the designs or color scheme of the uniforms, which he is simply portraying as is — basically, he is copying them, but only in the sense of a photograph, to create a new work of which the uniform designs are an incidental part. Except that, of course, the whole focus of his work is that it is of the U of A team, and if he didn’t paint the uniforms, there is no way that someone would distinguish his painting as being of the U of A team. Nonetheless, I think the correct analysis is that he is making money off of his own work portraying an actual event, not that he is making money from the commercial exploitation of the specific designs owned by the team. But I think that’s the theory.

  11. 11
    free speech says:

    Barbara’s got it right. Had the artist set out to realistically paint only the UA trademark and then to publish that painting as a print, or to affix it to mugs, then he would be making money from the commercial exploitation of the specific designs owned by the team.

    The same holds true if the artist were to paint a New Year’s Eve scene of Times Square, and he included the trademarks that were there . . . would he need to get permission from Sony, JVC, Kodak, Coca-Cola and the myriad of other trademark holders? I don’t think so. He should be able to create prints, mugs, calendars and sell them to fans and visitors of Times Square.

    Artist Jeness Cortez was sued in 1996 by the New York Racing Authority because her paintings depicted scenes of the Saratoga Race Course, that incidentally included Racing Authority trademarks. The courts upheld her First Amendment rights, opining that those marks were used descriptively and in a non-gratuitous manner . . . even though her art was published as prints and on note cards and stationary. Moore’s case is being heard in a different district (11th, I think) and perhaps the U of A is hoping judges down there will favor trademark rights over First Amendment rights . . . and that would be a slippery slope on which to embark.

  12. 12
    Barbara says:

    The more I think about it, the more intrigued I am by the argument. I don’t think U of A cares whether Moore paints the game and sells his paintings. It’s the licensing of his works that bugs them — because the only reason why they are licensed is because they reproduce U of A games, as opposed to generic football games. I’m still on Moore’s side, so long as it is legitimately his own work (which it is) the fact that it happens to include a depiction of property that someone else copyrighted is only incidental. My understanding is that the U of A was seeking protection even for the color scheme, so, for instance, Moore couldn’t even paint generic red and white uniforms that didn’t exactly “copy” the design.

    There is a fine (and sometimes not so fine) line between encouraging people to innovate and create and simply being the hammer for getting every last centime from the exploitation of existing works.

  13. 13
    Aaron V. says:

    I would think freespeech’s argument and the Cortez case cited in post #10 are persuasive.

    What Moore painted is obviously a University of Alabama – Auburn University game. (The giveaway is the “30” on the Alabama player’s helmet – Alabama helmets use the numbers in place of a logo.

    However, the analogy is that of whether a painter has the same rights to accurately replicate logos or trademarks in a historic event, like Moore does for memorable football plays. A site I saw some of Moore’s work on also has photos of historic Alabama football players and Coach Bear Bryant – it’s pretty obvious that even professional sports teams allow freelance photographers to sell their photos to news sources or for things like this or this.

    If a photo of a football player can be made without infringing trademark, a painting can be sold – the logos and other indicia are incidental to the portrayal of an event.

    Where the University holds the trademark is to the use of the logo and indicia of the football team for souvenirs, t-shirts, etc.