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Tuesday, November 3, 2009

Alabama Artist Strikes a Blow for the First Amendment

One of our major themes over the past 18 months is that the University of Alabama System is run by clueless administrators, who are enabled by a worthless cadre of lawyers.

A federal judge's ruling yesterday in a lawsuit involving sports artist Daniel Moore confirms our suspicion that UA currently is run by a bunch of blockheads. Senior U.S. Judge Robert Propst found that Moore's paintings of classic moments in University of Alabama football history did not violate trademark law.

The Daniel Moore case hits close to home here at Legal Schnauzer. I was unlawfully terminated from my job as an editor at the University of Alabama's campus in Birmingham (UAB) in May 2008. My offense? I had the audacity to exercise my First Amendment rights by writing on this blog about the political prosecution of former Alabama Governor Don Siegelman.

You can imagine the pleasure we took from learning that Daniel Moore had shown UA administrators that the First Amendment indeed exists in Alabama.

Moore almost certainly is the most beloved artistic figure in Alabama, renowned for his paintings of iconic moments in the history of Crimson Tide football. One can only imagine how many living rooms and dens across the state are adorned with Moore paintings that capture, in stunning realism, classic plays from major UA victories on the gridiron.

Moore probably has done more than any living human to portray the University of Alabama in a dynamic and positive light. So how did UA's leadership treat him? It decided four years ago to sue him, claiming that his paintings infringed on the university's trademark.

The case attracted the attention of The New York Times in 2006.

Propst yesterday ruled in Moore's favor, and in doing so, the judge showed how weak the university's case was all along.

UA contended that Moore's paintings violated trademark law because they included football uniforms with the university's distinctive crimson and white colors. We're not making this up, folks. The University of Alabama actually claimed that Moore's paintings--of a public event--violated trademark law because they included accurate depictions of football uniforms.

Is the University of Alabama just a little bit full of itself? Yes. Was the university's lawsuit against Daniel Moore full of elephant droppings from the outset? Yes. And Judge Propst, in so many words, said so yesterday.

According to the Tuscaloosa News, Propst rejected UA's argument that its football uniforms and color scheme are iconic enough to trump First Amendment rights in fine art:


"This court concludes that the depiction of the uniforms in the paintings is incidental to the purpose and expression of the paintings; that is, to artistically depict and preserve notable football plays in the history of University of Alabama football," Propst wrote in his memorandum opinion.

Propst even provided a brief history of sports uniforms. Wrote The Birmingham News:


Propst said in his opinion that crimson was first used by Harvard so spectators could distinguish Harvard's crew team from others in 1858.

Propst listed college teams such as Indiana, Kansas, Washington State, Oklahoma, and Utah who wear crimson in their uniforms.

"Cornell has been known as the 'Big Red' for many years," Propst wrote. Other college teams such as Arkansas, Arkansas State, and Rutgers wear a variation of red, Propst said.

"Not to mention the Kansas City Chiefs," he added.

The brilliant minds who run the University of Alabama spent well into the six figures to argue matters about uniform colors. Reasonable people, if any existed at UA, should have seen that they never had a case:


"This is a great win for the First Amendment," Moore's lawyer Stephen Heninger said. "His art is expressive and is protected by the First Amendment. It does not infringe on any trademark."

Is the Daniel Moore case over? Not by a long shot. A final order from Propst is expected in the next couple of weeks. And both sides agree that the case ultimately will be decided by the U.S. 11th Circuit Court of Appeals in Atlanta.

Moore's countersuit against the university and several officials has largely been gutted by the trial court on immunity grounds. But Moore's lawyers could argue that UA intentionally tried to deprive him of his Constitutional right to free expression, overcoming immunity claims and reviving the countersuit at the appellate level. Either way, UA is likely to wind up on the hook for Moore's legal expenses, which probably are substantial.

The lawsuit has not kept Moore from capturing the latest big moments in Crimson Tide football. And he also captured the issues raised in his case:


"What I thought about the ruling was ‘Thank God,' because it's been a long ordeal" said Moore, who was sketching his next painting of last month's UA victory over the University of Tennessee when he was told an opinion was issued.

"It's a victory for artists, journalists and every citizen who values the Constitution and the right of freedom of speech and artistic expression."

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