The legal battle between artist Richard Prince and photographer Patrick Cariou over what constitutes "fair use" of an image has set the art world ablaze because of the possibility that it will undercut the viability of artistic appropriation, a fundamental mode of contemporary creativity. But it is possible that another case currently in the courts could have effects that are nearly as far-reaching, even though it comes from a far less sophisticated aesthetic arena: the world of sports art.
Birmingham-based Daniel A. Moore has been locked in a fiercesome high-stakes legal battle with the University of Alabama (UA), which is seeking to prevent him from creating his popular photorealistic paintings of the school's sports exploits. In this case, the fate of the avant garde is definitely wedded to that of kitsch: Any work of art that happens to feature images of actual athletic uniforms, insignia, or even a franchise's signature colors could be affected. Artists like Malcolm Morley, who won the Turner Prize and is known for photorealist sports imagery, or Peter Max, who not so long ago collaborated with Shaq on an image of the basketball star in uniform, will be following this one closely.
Moore's fight with UA stretches back to 2005. He scored a big victory in that case three years ago, when a U.S. District Court in Birmingham ruled that his paintings were protected by the First Amendment. The same court did, however, deny First Amendment protection to the mugs, calendars, and other items printed with reproductions of the paintings that Moore had been peddling. Neither party was pleased with the ruling, and each filed an appeal. Arguments in the ensuing case were given at the 11th Circuit Court of Appeals in Atlanta on February 2, and a decision is expected soon.
A recent Wall Street Journal article on the case notes the David-versus-Goliath nature of the courtroom showdown, which has pitted Moore and Steve Heninger, his Birmingham-based lawyer, against a legal team and other unspecified "material and financial support" provided for UA by Collegiate Licensing Co. (CLC), the college's merchandising company, which also represents the NCAA and 100 other universities. Sales of licensed collegiate merchandise amount to a massive $4 billion annually.
The case's implications could reach far beyond Alabama — where, ironically, several of Moore's paintings are hanging in the Paul W. Bryant Museum at UA's Tuscaloosa campus. "CLC wants the law in black and white and a favorable ruling so they can charge the universities they represent more to go after art work and posters," Heninger told the Birmingham News in January. "They've tightened up a lot on (unlicensed) T-shirts, which is understandable. But art, we've got to fight [for]." If the Court of Appeals verdict is not in favor of CLC — which has already spent $1.4 million trying to halt Moore's paintbrush — UA and the company are prepared to take the case all the way to the Supreme Court.