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Day 1, Entry #1 with Jamie Cicatiello discussing the Daniel Moore controversy with the University of Alabama.
First and foremost I would like to thank Sarah for asking me to participate, and since she is going with a ladies first approach, I would like to thank her for allowing me to start the discussion.
This topic is actually very important for me since I have a masters degree in photojournalism. Free speech and freedom of the press are hot topics to me. Do I think Mr. Moore has the right to paint the football scenes and make money? Yes, I do. I learned in photo law class that I have the right to take a photo of someone as long as they are in public. Basically if you think in terms of the paparazzi, they have the right to take photos of celebs doing things in public–walking, talking shopping, whatever. They cannot take photos of people in private places (i.e. malls, church, schools, etc.) because basically that falls under the laws of entrapment. That is why the National Enquirer had to run of photo of deceased Whitney that someone gave them and just couldn’t go in and take one themselves.
Why do I bring all this up? These football games that Mr. Moore is painting are not only seen by the fans that are in the stadium but also by the millions of people on TV. So, yes, he is in my mind protected by many laws because everything that he is seeing and then painting is being made extremely public.
So now we have to go into licensing fees. I read that the school wants 80% of what he makes. Do I think that is excessive? YES!!! Saying he is taking money away from scholarships is a little far fetched. The Football program here generates millions of dollars a year. Yes, Mr. Moore has been selling his paintings since the 1970s, but what he has made from the paintings most likely pales to what the team/school makes yearly. You also have to think that, if he isn’t allowed to paint from what he sees on TV or from photos that are taken, what makes you think that the University will stop there? They may not want you to post photos of the game on Facebook because if you did that and someone copied the photo you posted and painted it or sold it and started making money, the University could put a stop to it because they are losing money on what they believe they own. Which brings up branding.
Mr. Moore isn’t allowed to paint the uniforms exactly as they are, due to branding issues, which I agree with. The script “A” is licensed and so are some other things that are spoken about in the article. So he does not paint them. Therefore, once again, he is protected. Now, you may all remember that Kim Kardashian sued Old Navy in the use of a model in her likeness and I think she won. Do I think Kim did the right thing? Yes. So why can she sue and win against a look a like while I think it’s okay for Mr. Moore to paint uniforms that look like the real thing but aren’t? Branding. Kim’s boobs and ass are her one and only brand. She has to protect that brand. That is why she is selective on where she can been seen for events because once she or her brand become common, like slang, it’s over. She can’t charge for her brand. Like here in the south we call every soda a coke. Coke MUST defend their brand. If the entire U.S. called every soda coke, they would lose their copyright. (My dad is from Ohio so I ask for a pop when I want a drink.)
The University’s Football team is, to me, public property; they can’t be branded or copyrighted. The Script A? Yes! Copyrighted. “Crismson Tide” I believe is copyrighted? Maybe someone can find out if Steely Dan had to get licensing agreements for their song lyrics. But, as far as the crimson helmet with the white stripe down the middle, not so much. It’s just out there.
This whole controversy brings up many, many harder questions when it comes to music and sampling and so on so I look forward to the weeks discussion!
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I think there is some confusion here regarding copyrights and trademarks. A logo, such as the scripted A you described, is in fact a trademark (note the TM seen next to instances where it is used). Most logos, unless incredibly ornate, don’t qualify for copyright, and the ‘A’ certainly doesn’t. In fact, it looks like a very common scripted typeface. Daniel Moore’s paintings, on the otherhand, qualify as copyrighted work because it is his own vision and creation. Same with a photo, novel or movie.
This case is significant because it sets a strong precedent that artists CAN use team/company logos (most logos are not/do not qualify for copyright protection) in their artwork without infringement. The Lanham Act was never meant to be (as argued by UA in an attempt to infringe on Moore’s First Amendment Rights) about whether an artist could use a logo in artwork, rather whether or not that logo would cause a confusion of ownership (ie, Daniel Moore being confused for as UA–which is surely not the case).
Speaking here from a photographer who’s also involved with commercial and public image copyrights I’d have to agree with the original poster, and also politely disagree on one point in Peter’s reply above in that some logos may not qualify for copyright, I would think most do.
I believe a factor not mentioned may be the specific usage of the replicated material. Of course the legality here is probably best left for a copyright lawyer, of course these rights are cloudy and being forced to change with the times.
Great article! I’m glad I stumbled on it online, thanks for sharing!