Sunday, February 5, 2012

Artists, Alabama, Auburn and Appropriation

This past Thursday the US 11th Circuit Court of Appeals heard oral arguments in the case of the University of Alabama Board of Trustees v. New Life Art. This is the case that brings the Crimson Tide head to head against artist, Samuel Moore, who has been capturing the Tide in action in his paintings of the storied football team over many years. The lower court held that while Moore’s depiction of the team’s red and white uniforms did not infringe upon the university’s trade dress, the reproduction of those paintings on mugs and other merchandise did. In addition to the parties themselves in the action, on one side of the line a whole host of law professors and other interested parties have filed an amicus brief in support of the artist and his position that wherever the depictions wind up, be it on mugs or glasses, to restrict them under the cloak of trademark law would be nothing more than a restriction on free expression. On the other side of the line, a lineup including the University of Florida, LSU and, yes, even Auburn, as well as twenty-four other schools, has sided with Alabama.

While the teams (i.e. Alabama and New Life Art) have seemingly limited the playing field to issues related to trademark law and likelihood of confusion, etc., the case serves as a good jumping off point to consider another area of law and its relevance, or possible lack thereof, with respect to this case, namely the area of law referred to as right of publicity. Historically, publicity rights have been claimed by individuals rather than entities with the understanding that individuals are seeking to protect misuse of their own persona and identities whereas entities tend to rely on trademark protection as a means of protecting the unsuspecting consumer who rely on those trademarks as the consistent identifier for the source of various goods and services. Arguments have occasionally been made for the expansion of publicity rights, which are derived under state law, to afford protection to entities as well as persons. One thing to note is that the origin of the right of publicity is derived from the right of privacy, primarily the “appropriation” prong. The point being that it is a right linked to the “individual” as an individual rather than a right linked to a legal fiction, such as a corporation or other legal entity. The ultimate difficulty in seeking an expansion of publicity rights to cover entities, in addition to individuals, is that intellectual property laws, such as the Lanham Act, are able to provide protection for these entities without the need to encroach on other legal doctrines or rights currently associated with natural persons.

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