Unauthorized paintings depicting college football

by Walter Olson on August 7, 2010

Big Collegiate Licensing has appealed a federal court’s ruling in favor of an artist who depicted Alabama’s Crimson Tide football team without consulting, and paying a fee to, the university’s rights department. [Ron Coleman]

{ 14 comments }

1 Smart Dude 08.07.10 at 5:50 pm

Reason number 18,987,609 for Loser Pays.

2 Bumper 08.08.10 at 9:39 pm

Sadly, even though I agree with you sentiments, I suspect in this case UA, based their hiring of Mike Price, etc., has more than enough money to piss away on frivolous lawsuits.

3 Aaron Worthing 08.09.10 at 8:24 am

I am of two minds about this.

On one hand, let’s face it, the chief value of the painting is that some Tide fan will want to buy it. I mean imagine if the uniform was of the Dallas Cowboys. Do you think anyone in D.C. would buy it? (if you don’t know D.C. let me clear that up: NO!) If the scene was basketball, and it depicted a Duke player, how many Carolina fans would buy it? Zero. So they are totally free riding off of the value created in the Tide brand.

But on the other hand, the sports world works tirelessly to make it its events into public spectacles that we all follow. We have whole sections of the newspapers devoted to it. If the local paper wants to snap that picture and sell it, they may. And if the redskins manage to win the superbowl, you can bet the WAPO will sell a special edition celebrating it. And under freedom of press it is their right. And if you can photograph it, you should be able to paint it.

So for me its a big “i don’t know.” And that is especially difficult because i don’t see what they are bringing to this as added value.

4 gitarcarver 08.09.10 at 9:40 am

I am of two minds about this.

The apocalypse is upon us.

You and I actually agree.

If the painter sticks to painting “events,” or “moments in time,” I have no problems with him doing so.

The problem I think this guy runs into is that he also makes paintings of people (such as Bear Bryant and Nick Saban), puts an “Alabama logo” in the painting, and then sells it as well.

5 Aaron Worthing 08.09.10 at 11:00 am

Gitar

> The apocalypse is upon us.

You know, just the other day i saw a dog and a cat living together. But i didn’t think much of it at the time. ;-)

6 Don 08.09.10 at 12:07 pm

I have seen news stories about Ford pressing trademark claims against people who try to publish pictures of their own cars.

This would have to be a similar thing.

One example was a Mustang Owners Club who tried to publish a calendar of their own cars. Ford claimed it was violation of their trademark and copyright for this “commercial use”.

7 Bill Poser 08.09.10 at 12:13 pm

I’m not of two minds about this because what gives Aaron Worthing and Gitacarver pause, “free riding”, shouldn’t. Trademark law is only intended to prevent one producer from misidentifying its product as that of another. It is not intended to prevent one producer from taking advantage of a market created by another. “free riding” is a routine and essential part of both economic development and science. One company introduces a new product. Another, inspired by the first, creates a similar but better product. This is normal and good. The law doesn’t prevent it, and it shouldn’t. Similarly, a particular team or coach or league may popularize a sport. Other teams, coaches, players, equipment suppliers and so forth benefit from this. They get a “free ride” in that they need not pay the popularizer or obtain its permission. The only legitimate use of the Alabama trademark is to prevent others from identifying their teams and associated products as those of Alabama. Everything else is news, in the public domain, and fair game.

Patents and copyrights limit free riding in certain ways, but not in general, and trademark law limits it even less. In general, saying that one party is getting a free ride on the work of another does not constitute a legal argument or an ethical argument.

8 John Burgess 08.09.10 at 5:02 pm

Mr. Worthing: Sadly, I know many DC residents who support the Cowboys. Race, sex, and age are no barriers to this particularly perverse exhibition.

9 gitarcarver 08.09.10 at 9:58 pm

Trademark law is only intended to prevent one producer from misidentifying its product as that of another.

The guy makes a painting of the University of Alabama logo, sells it, and that is not confusing the product as being licensed by the University?

When the guy paints a picture of Alabama playing, that is fine by me. That is capturing a moment in time.

When he paints a montage of nothing but Alabama’s trademarked logo, he doesn’t have that right.

10 Bumper 08.10.10 at 12:35 am

“When he paints a montage of nothing but Alabama’s trademarked logo, he doesn’t have that right.”

But what if he does it as a parody?

11 Moriarty 08.10.10 at 5:19 am

Andy Warhol wouldn’t have much of a career these days, that’s for sure. Whether that’s a good thing or not, however…

12 Aaron Worthing 08.10.10 at 9:02 am

Bill

> Trademark law is only intended to prevent one producer from misidentifying its product as that of another.

You don’t think that the casual viewer would think that this was endorsed by the Tide?

> One company introduces a new product. Another, inspired by the first, creates a similar but better product.

Well, that kind of fails to relate. Wii created these motion controls. Then Sony of course take the same idea and combines a camera and better tracking equipment and call it the Move. Well, that is great that is what innovation is all about.

But Sony can’t create the motion controls and rename its game system the “Wii” and so on.

And of course on the techy end there might be patent issues, too. the science goes over my head so the law does, too, but the trademark issue is clearly enough in that case.

Like I said, I am of two minds on the subject, but I don’t think its as clear as you say.

13 gitarcarver 08.10.10 at 10:41 am

But what if he does it as a parody?

He’s not. Let’s stick to what he is doing, please.

Andy Warhol wouldn’t have much of a career these days, that’s for sure. Whether that’s a good thing or not, however…

Warhol’s iconic painting of the Campbell’s soup can proves the point. Warhol designed the can. Campbells let him use the image in his paintings. It is an image that he guarded jealously as well he should.

14 Moriarty 08.11.10 at 5:32 am

@gitarcarver

Warhol didn’t have any connection to the Campbells company, he just copied their can. It wasn’t his design.

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