TRUSTEES' LAWSUIT + UA'S ACTIONS =
CONFUSING MESSAGES TO THE ALABAMA FAMILY
Artist Daniel A. Moore says he is flattered, humbled and strengthened by the continuing and overwhelming public support for him as he defends the attack on his First Amendment Rights. This Constitutional attack came in the form of the lawsuit filed by The Board of Trustees of the University of Alabama just over one year ago. And the reception to his latest sold-out prints of The Catch , and Rocky Stop and strong initial sales of his new book, Iron Bowl Gold , seems to reflect the public sentiment and support for this famous Alabama alumnus.
For more than 25 years, Moore has produced both "licensed" and "unlicensed" artworks depicting famous moments in Alabama sports history. NCAA Bylaws prohibit its member institutions from receiving any money from third parties who use the name or likeness of student athletes who have remaining NCAA eligibility. Because the University receives money from licensing, it cannot license most of Moore's paintings, including such works as The Goal Line Stand and his most recent two paintings, The Catch and Rocky Stop.
Court records show that UA Trustees are trying to establish a claim of trademark infringement for Moore's unlicensed artwork under the Lanham Act. To do that, a plaintiff must show that there is a likelihood of consumer confusion as to who approved or sponsored the product that is caused by the promotion of a product or from the product itself, according to Moore’s attorney, Steve Heninger. He said the Trustees are attempting to do this by using a survey that involved reproducing Moore’s copyrighted work from his web site without his permission.
But Moore says he is completely confounded by the UA Trustees' claim that he has confused the marketplace by his artistic portrayals of famous football plays involving the Crimson Tide. Moore's sentiment stems from the fact the University has constantly promoted him and his unlicensed artwork since 1980—specifically in 17 major instances—and continues to do so today.
Moore said these instances go from including the artist and his unlicensed works for official football recruiting purposes, to having his first unlicensed work of The Goal Line Stand reproduced as a wall mural in the newly opened University Medical Center in January of 2006.
“It is frustrating and troublesome beyond description knowing that the University of Alabama Board of Trustees fabricated the hypothetical confusion found in the illegitimate and ill-founded survey it conducted and now they are trying to blame that fabricated and hypothetical confusion on me," says Moore. "The University has promoted and sold my unlicensed artwork and enjoyed the good public relations my work has created for UA, beginning with Coach Bryant's blessing of my first painting depicting Alabama football in 1979. Astoundingly, UA has continued promoting my artwork since this lawsuit was filed. We had a mutually beneficial relationship for over 25 years. The lawsuit brought by the UA Trustees is totally unfounded."
Moore cites the following list of the University's proactive marketing efforts and implied approvals of his unlicensed products that he will ask the Judge to consider in his next motion filed with the Court:
1. In 1980, UA produced and mailed out 30,000 brochures from the UA Athletic Department under the name of “The Crimson Collection.” These brochures promoted Moore and his unlicensed artwork of The Goal Line Stand, All on the Line, The Top of the Line and The Making of a Legend . (The latter depicted a prominent trademark "A" on Coach Bryant’s cap). The University profited from the sales of each of these unlicensed art prints generated from this effort.
2. UA not only sold unlicensed prints through the Crimson Collection brochures, UA sold advertising to Moore in its official publications that facilitated him in the promotion and selling of his unlicensed prints.
3. Beginning in 1981 and ending in 2002, UA issued Official Sideline Media Credentials to Moore. UA did this knowing that the artist was obtaining photojournalist reference to aid in creating his unlicensed artwork. Potential consumers of Moore’s artwork saw him on the sidelines of UA home games with UA's approval. There are published photographs of Moore on the sidelines, including one of the artist standing just behind Coach “Bear” Bryant.
4. The University’s Bryant Museum has sold Moore's unlicensed prints and products and displayed Moore’s unlicensed paintings to tens of thousands of people since 1986, continuing right up to the time the lawsuit was filed in 2005. Just several months prior to the lawsuit, the Bryant Museum curator and Moore had come to a tentative verbal agreement to use Moore’s famous unlicensed image of The Sack to promote the Museum. Moore’s painting was to be prominently featured on a billboard located on southbound I-20/59 just a few miles north of Tuscaloosa.
5. The Bryant Museum invited and hosted Moore to sign his unlicensed calendars and books on busy game days—on more than one occasion. The Bryant Museum advertised that the artist would be appearing there. The University profited from these signings and from the sale of unlicensed products during these signings.
6. The Bryant Museum invited Moore as an “ambassador” for art and for UA in its “Art With the Experts” for five years. The program at the Museum is for elementary school students in the region. In his talks to the children, Moore displayed his unlicensed works, under his unlicensed painting of The Sack, as he promoted his university and Alabama Athletics.
7. The Bryant Museum used the unlicensed image of The Goal Line Stand by Moore on a special issuing of DeltaCom phone cards, produced to raise money for the Museum. The famous artwork made the cards attractive and collectable.
8. The University Supply Store at the Ferguson Center has been selling Moore’s unlicensed prints and products since 1981 and UA has profited greatly from it. This continued for a short period of time after the lawsuit was filed in 2005. Apparently, the UA Office of Legal Counsel realized the hypocrisy of this and ordered the practice to cease—knowing that this would not look good for the University's case.
9. The University published Moore's painting of The Kick on the cover of its 1986 Alabama-Auburn game program. This artwork was unlicensed by UA. If any confusion exists among consumers in the actual marketplace, UA's tacit approval of this unlicensed artwork is just one of the things UA did to cause it. UA's approval would carry over and be applicable to all unlicensed artwork released by Moore after that time.
10. On two occasions, The University Supply Store invited Moore for appearances for the express purpose of signing his unlicensed products. On both occasions, the University directly profited from the sale of Moore's unlicensed products.
11. In January of 2000, the Alabama Football Recruiting Coordinator asked Moore to participate in an Official recruiting meeting with a football prospect from Albany, Georgia, at the Bryant Museum. This UA Football coach used the artist's personal appearance, his painting of The Sack (an unlicensed painting) and his sketch for Rebirth in the Swamp (an unlicensed print) to aid in recruiting. While pointing to The Sack , the coach told the recruit something to the effect of, “Son, at Alabama, football is a fine art." He further stated that if the recruit played for Alabama, Moore might create a painting that featured the recruit in it.
