The 11th Circuit Court of Appeals released their opinion today in favor of artist Daniel Moore in his case against the University of Alabama.
FROM THE OPINION:
As evidenced by the parties’ course of conduct, Moore’s depiction of the University’s uniforms in his unlicensed paintings, prints, and calendars is not prohibited by the prior licensing agreements. Additionally, the paintings, prints, and calendars do not violate the Lanham Act because these artistically expressive objects are protected by the First Amendment, by virtue of our application of the Rogers balancing test. The uniforms in these works of art are artistically relevant to the underlying works, Moore never explicitly misled consumers as to the source of the items, and the interests in artistic expression outweigh the risk of confusion as to endorsement. Accordingly, we affirm the judgment of the district court with respect to the paintings and prints, and reverse with respect to the prints as replicated on calendars.
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With respect to the licensing agreements’ coverage of the mugs and other “mundane products,” we reverse the district court because disputed issues of fact remain. See, e.g., Alvarez, 610 F.3d at 1271 (reversing a grant of summary judgment with respect to an employee’s retaliation claim, since the employer’s motivations for terminating the employee remained unclear from the record, adding that the “issue can be resolved at trial, if necessary”). Moore has not argued on appeal that his actions with respect to these items constituted fair use or were protected by the First Amendment, and therefore any such protection has been waived, and we need not address those issues with respect to the mugs and other “mundane products.” We remand this case to the district court for further proceedings, consistent with this opinion.
