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Focus on Regulation

Eleventh Circuit Sides With Artist In Dispute Over the Depiction of the University of Alabama’s Uniforms

Does a university have the right to stop an artist from selling paintings and other expressive items that depict the school’s football uniforms?  In a recent case involving the University of Alabama, the Eleventh Circuit Court of Appeals’ answer was no.  The court held that a painter’s First Amendment right of expression outweighed the university’s rights in its marks.

The case, University of Alabama Board of Trustees v. New Life Art, Inc., addressed whether the University of Alabama could prevent Daniel A. Moore from selling paintings, prints, and calendars that depict players wearing the Alabama football team’s signature crimson and white uniforms.  After setting aside the university’s argument that licensing agreements prohibited Mr. Moore from selling the items, the court turned to the appropriate balance between the University’s rights in its marks and Mr. Moore’s right to free expression.  In holding that Mr. Moore’s rights prevailed, the court found:

  • The paintings, prints, and calendars “clearly are embodiments of artistic expression, and are entitled to full First Amendment protection.”
  • The depiction of the 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.”
  • There was “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.”

Twenty-seven universities joined a friend-of-the-court brief urging the Eleventh Circuit to side with the University of Alabama.  The universities argued for strong protection of their marks in school colors, which they explained represent “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.”