August 3, 2010
Victor Perlman, General Counsel
American Society of Media Photographers
Phone: 215 451 2767
Philadelphia, PA… The American Society of Media Photographers (ASMP), joined by the Alabama Press Association, has submitted an amicus curiae ("friend of the court") brief in support of defendant Daniel A. Moore in the case The Board of Trustees of The University of Alabama v. New Life Art, Inc. and Daniel A. Moore in the United States Court of Appeals for the Eleventh Circuit. At issue is the extent to which artistic expression is protected by the First Amendment when trademarked images are used in artwork.
Moore, an award-winning artist who is known for capturing great moments in sports history, was originally sued for trademark infringement by the University of Alabama in 2005. The University claimed its trademarks rights were violated by Moore's depiction of its player uniforms as well as by other images in his fine art prints and memorabilia of scenes from its football games. Though the District Court found that Moore's larger prints were protected by the First Amendment, it ruled that mini-prints, calendars and other items were not. Since that time, a legal battle has ensued in which both sides have appealed and the University has been joined by a number of other prominent universities in filing an amicus brief.
According to ASMP General Counsel Victor S. Perlman, "The potential effect of this ruling is to limit the expression of every visual artist who takes a photo in which there is a logo and, thus, effectively to censure artwork." Further, Perlman says, "This decision applies trademark protection where it is not needed -- to an artist who is not using a trademark for trademark purposes."
The Brief filed by ASMP urges the Court to protect Moore's art and argues that it passes the First Amendment test of having artistic relevance to its underlying expression and images which are not misleading in nature. Moore used the images in which the University claims trademark rights to faithfully and accurately depict historical plays and moments in Alabama football. The Brief argues that these works have been presented to the public without any intention to deceive and are, therefore, entitled to the full protection of the First Amendment.
The brief was filed on behalf of ASMP by J. Michael Murray and Lorraine R. Baumgardner of Berkman, Gordon, Murray & DeVan, with Mr. Perlman of counsel.
ASMP is the leader in promoting photographers' rights, providing education in better business practices, producing business publications for photographers, and helping to connect purchasers with professional photographers. ASMP, founded in 1944, has nearly 7,000 members and 39 chapters across the country and its members include many of the world's foremost photographers.
More information is available at http://www.asmp.org/.