University cannot license free expression
“Win or lose, we must know the images we can protect and those we cannot.” This was Dr. Robert E. Witt's explanation as to why he decided on behalf of the University of Alabama to bring a trademark infringement suit against me in 2005.
Rather than take advice from a bunch of CLC trademark lawyers, Dr. Witt could have simply looked to the Supreme Court, like I asked him to do in 2002. The Supreme Court ruled in 1995, "The protection of the First Amendment is not limited to written or spoken words, but includes other mediums of expression, including music, pictures, films, photographs, paintings, drawings, engravings, prints and sculptures." The U.S. District Court's recent ruling, now being appealed by UA, recognizes this First Amendment protection for my original paintings and art prints published from them.
The University claims through its lawsuit that its trademark rights trump artists' First Amendment rights. As a fine arts major, along with my fellow art students, I was taught by professors in the UA classrooms and studios that we could operate freely under the First Amendment and express ourselves on canvas in any way we chose to do so.
If I choose to express UA in a positive light through my work, or even if I were to choose otherwise, the state (UA) does not have the right to censor or license that expression, whether that expression is sold or not. A federal judge has already debunked this wild assertion by UA (which is the state) because it does not square with the First Amendment. Likewise, all of the unfounded statements by Dr. Witt and the UA Media Relations spin team about me simply do not square up with the facts.
It is mainly through the royalty payments for licensing that I have been pleased to generate over a million dollars in assets for my university. In legal documents, University representatives have testified that my artwork has brought it goodwill (positive PR).
Good PR is something that I have tried to generate for UA since 1979, when I released my first unlicensed print at the age of 25. On record is the fact that the University sold (thousands of) my unlicensed art products for its added financial benefit. I find it quite ironic that selling unlicensed prints is the very same thing over which the University is now suing me. With the bad PR brought on by this lawsuit, Dr. Witt has effectively canceled much of the good I have tried so hard to create for the University over the course of my 33-year career as a painter.
A portion of the money that UA receives from licensed products goes to fund student scholarships. This is a very good thing, indeed. And it has been my pleasure and good fortune to help out in the area of scholarships.
Over the course of this seven-year legal battle, one of the most hurtful things to me and my family – all of whom love and graduated from the University – is that Dr. Witt and the UA Media Relations department, through their wide-reaching public statements, said that I simply "refused to license." They equated this with depriving students of scholarship money, trying to paint me in a bad light as a recalcitrant thief. These statements were clearly a knee-jerk reaction in an attempt to evoke sympathy and support from fans, alumni and students for UA's ill-advised attack against me.
I have never "refused to license," and thus, help fund whatever the University deems is worthy of funding. In fact, since our trademark/First Amendment dispute began, I have presented three projects that would benefit student scholarships, of which the University turned down licensing opportunities because it insists that I license everything. At the least, this all-or-nothing mindset is absurd because the NCAA bylaws will not allow UA to license most of the prints sold by my company. Therefore, if Dr. Witt and Media Relations wish to continue to proffer "licensing" as the sole criteria for judging one's concern for scholarships, then it could just as well be said that UA is refusing to fund student scholarships because the University has refused to grant me licenses on opportunities I have presented to it.
Dr. Witt has acknowledged that the immediate blowback from UA's lawsuit against me and my First-Amendment protected paintings and prints has been significant. Therefore, it appears most likely that Dr. Witt and Media Relations only raised the scholarship issue as a red herring shortly after the lawsuit was filed, in order to evoke public sympathy for what they quickly realized was a mistake.
Daniel Moore graduated from The University of Alabama in 1976 with a Bachelor of Fine Arts.