Since 1979, Daniel A. Moore has painted famous football scenes involving the University of Alabama. The paintings feature realistic portrayals of the University’s uniforms, including helmets, jerseys, and crimson and white colors. Moore has reproduced his paintings as prints and calendars, as well as on mugs and other articles. The University sued Moore for trademark infringement and unfair competition. The University asserted that Moore’s unlicensed paintings, prints, and calendars infringe on the University’s trademarks because the inclusion in these products of the University's football uniforms (showing the University's crimson and white colors) creates a likelihood of confusion on the part of buyers that the University sponsored or endorsed the product. The appeals court disagreed, concluding that the First Amendment interests in artistic expression so clearly outweighed whatever consumer confusion that might exist, and therefore there had been no violation of the Lanham Act. Notably, the court held that the depiction of the University’s uniforms in the content of these items is artistically relevant to the expressive underlying works because the uniforms’ colors and designs are needed for a realistic portrayal of famous scenes from Alabama football history, and there was no evidence that Moore ever marketed an unlicensed item as “endorsed” or “sponsored” by the University, or otherwise explicitly stated that such items were affiliated with the University.
TIP: Although artists may argue that use of third party trademarks is protected by the First Amendment, brands do not enjoy the same privilege when using third party trademarks in connection with their advertisements.