Whose Image is it Anyway?

The art and controversy of Alabama football

by Joe O’Donnell    photos by Jerry Siegel

Daniel Moore

Dating back to 1979, there have been paintings of stellar moments in University of Alabama football history: The Goal Line Stand, The Kick, Never Again, and The Sack. The question for sports artist Daniel Moore is: Will there be one called The Suit with players in pinstripes and a federal judge’s bench replacing the goalposts.

“I don’t know. But if there is it will have to have sort of a Norman Rockwell humor about it. The alumni magazine ran a feature about me and my art, at practically the same moment they hit me with a lawsuit,” says Moore during an interview in his New Life Art Gallery off Lorna Road in Hoover.

The complexity of the relationship between Daniel Moore and the University of Alabama resembles a long marriage that has turned decidedly South and shockingly ugly.

Forget old-fashioned, smash-mouth football, the game being played out between Moore and the university in the federal courts is nothing less than smash-mouth art. The fate of this contest turns on the legal question of who holds the trump card in a case that pits Daniel Moore’s first amendment right to express himself as an artist against the University of Alabama’s right to trademark protection—and the expectation that entities creating items bearing a trademark would have paid a licensing fee for the privilege.

Moore says the team colors and logos in his paintings result from the free expression of his art. The University says he should pay a licensing fee to have the right to use those things in his work. Those are pretty divergent views and, according to the University of Alabama, $1.4 million has been spent to battle it out in the court system. Daniel Moore says he has spent in excess of $200,000 in the legal fight.

The case has turned into a marathon legal battle with plenty of what Daniel Moore calls, quoting a Paul Simon song, “incidents and accidents and hints of allegations along the way.”

It wasn’t always so bitter. In fact, from the late 1970s until the legal trouble began brewing around 2001, you might say the Daniel Moore/University of Alabama union was a match made in heaven.

It certainly seemed providential to Moore, a Birmingham area native who grew up in Bluff Park, attended Berry High School and graduated with a degree in graphic design from the University of Alabama. A self-described wild child (“I was a Type AA personality who probably needed Ritalin”), Moore grew to find in the discipline of art and, he says, the grace of God, his life’s work painting scenes of sports action, most successfully the storied football moments of his alma mater, the Crimson Tide.

His mom had majored in art education in college at the University of Kentucky. “She sacrificed a lot of her art to raising four boys,” Moore says. His father was a foreman at U.S. Steel who also retired as a colonel in the Army Reserves, and was a big sports fan.

“Dad was keeping me in cleats and baseball gloves and mom was keeping me in paintbrushes and watercolors,” Moore says.

“Some of the teachers I had early on recognized that I might have had a little talent. I was fascinated by my mom’s oil kit with tubes of oil paint. When she got out of painting I got all of her old oil tubes. I even squeezed some oil from one of those old tubes to use in my newest painting.” Moore is working on his latest commemorating Alabama’s win over LSU. It is called The Shutout. Moore’s mother is 84 and still teaches art at her church, Bluff Park Methodist. His father died in 1990.

Moore played high school football at Berry for Coach Bob Finley who had a great role to play as a mentor in Moore’s life. A Moore-painted portrait of the coach hangs in an upstairs meeting room in the artist’s New Life Art Gallery.

Moore named his business, which he opened in the early 1980s, New Life because, he says, that is what art became for him.

“I made a commitment to change my life when I was in college,” he says, “Art is either an expression or an interpretation of something. My art is my expression of a new life I found in Christ.

“God has given me patience. When I fell in love with painting and really got involved in the photo realist moment back in the 1970s, they brought an exhibit of New York realists to Tuscaloosa and I thought that just blows me away. I was competitive and I thought to myself I could do that.”

Moore says his art is influenced by the old masters and the futurist movement as represented by the Italian artist Balla. “Sometimes I use motion and soft focus to draw the eye to certain areas. It takes hundreds of hours but I know that going in. My paintings are journeys. I see them grow up from concept to what they become. There is more of a message to my work than just “Bama scores,” you know. Football is a metaphor for life. Football becomes the medium that carries my message,” Moore says. “I am recording a historical event, but to me there is so much more involved  and so much more that I am saying and expressing than just that historical event.”

Moore’s career began right after college. He married his high school sweetheart, Brenda, in 1977 right after graduation, and took a handful of small jobs in the graphics world, including painting pet portraits for $35 a pop. In short order, Moore went to work for Alabama Power Company in their advertising, graphics and communications department.

His first portrait was done for a power company publication, a color illustration of a runner, Ray Giles, who was training for the Boston Marathon. With the biblical verse from Isaiah reverberating in his mind, Moore painted angel wings in the sky over the shoulders of the runner whose feet were not touching the roadway.

Because he had spent so much time on the portrait, Moore asked the power company if he could print posters of it and make some money on the side from the work. Moore ended up selling posters in all 50 states and several foreign countries.

That was the first time, Moore says, he felt there might be an audience out there for his work, and really the first time he felt there might be an opportunity for him to paint full time and make a living at it.

“The poster I produced in 1978 was the springboard that got me going. I worked full time, so my wife and I and would stuff mailing tubes and send them out of our two-bedroom apartment in Vestavia. I would run to the post office on my lunch hour to see if we got any orders,” Moore says. “This was all before Brenda and I had children.” Today the couple has three children, all graduates of the University of Alabama: Julie, 29 and newly married, majored in broadcast journalism at the university. April is 26 and started a fashion business with three Alabama, classmates called three07. Brittany, 23. majored in photography; her work was included last year in the Bluff Park Art Show.

With orders coming in for the runner’s poster, Moore was looking around for more projects. “Chris Brown, who was in the public information  and advertising department at Alabama Power, suggested I do a painting of Alabama football because they had just won the national title in 1979.” That painting became Moore’s first work tied to sports at the University of Alabama, The Goal Line Stand. It took him until August 1979 to finish the work.

Bama magazine was going to publish for the first time that fall and I bought an ad on the back cover. Originally they said they might publish 5,000 copies but then they upped the ante and printed more like 100,000 copies. But they honored the original rate they quoted me for that back cover ad. I’ve always felt that God was looking out for me in some of the fortunate things I ran into in starting my career.”

In tiny type at the bottom of the ad, Moore offered the original painting for sale at $10,000. “I had never sold anything for more than $350 before.” The price had been set at a Bible study Moore attended with friends when they sat around and tried to decide if they prayed about it and had faith what would Moore’s painting be worth. “When they said $10,000 I thought, you know, your faith is a lot stronger than mine,” Moore says.

In a trip to the post office to see what orders had come in that day, Moore saw an envelope with a letter inside from the owner of Anderson Oil and Gas Company. The letter said the man wanted to purchase the original artwork for the price quoted in the ad. Moore used that revenue as seed money to end his career at Alabama Power and embark on a new venture as an artist.

“So I jumped off the high dive. It was easier to jump not having kids, because the temptation of job security and retirement with the power company was great. But it worked out for me,” Moore says.

Through the 1980s and 1990s the paintings appeared with regularity satisfying Moore’s growing base of dealers, collectors, and customers.

“For a while I did everything myself sitting at the easel with a cordless phone and a palette. I would take orders in a notebook on my lap. My dad did the shipping for me after he retired.” By 1987 Moore moved  the business out of his house to the New Life Art Gallery in Hoover. For a time the company even did one-person shows of regional artists as a working art gallery.

The relationship between Moore and the University of Alabama in those years showed no outward signs of the enmity that would follow. “When I did The Goal Line Stand back in 1979 licensing was not even on the radar. In fact, back in 1981 the university put out a brochure of items for sale that included all three of my paintings so at that point the university was like one of my dealers,” Moore says.

Today the college licensing business is a monumental enterprise with $4.5 billion in sales. The industry’s biggest player is IMG’s Collegiate Licensing Company (CLC), representing over 200 collegiate properties including Alabama, Auburn, Texas, Florida, Tennessee, Michigan and UCLA. CLC works with over 3,000 licensees nationwide that manufacture licensed college apparel, souvenirs and video games.

The dispute between the University of Alabama and Daniel Moore started to bubble up to the surface about 2001 with the two sides at an impasse. “I voluntarily licensed four projects with the university but I did not license what was inside the image area.,” Moore says.

By 2005 Moore says he had conversations with the university and CLC and was working to get a declaratory judgment to settle the matter. “The whole idea was to keep it under the radar. We just wanted to know is this art protected or not. This was my school. We already had a stand in the schoolhouse door. How many times do you run into the Constitution before you realize it hurts,” Moore says.

Moore says he settled on attorney Steve Heninger to represent him. Then a fax machine at New Life Art Gallery whirred to life and spit out a lawsuit. Henniger and Moore counter sued a few days later.

“The case is now about to go before the 7th judge. I feel like I have a degree in all of this,” Moore says. “It has cost me more in lost production than in legal fees. I am still getting cease and desist letters. I have quite a collection by now.”

So how does Moore feel about the university that has been a key component of his career and the life of his family. “I have compartmentalized it because I know there are just a few misguided individuals who have triggered all of this. It is not the alumni, the coaches, the players, or professors. I wanted to represent the university and university art department well. I wanted to put my best foot forward and reflect well on my school. My work had always been positive.” But, Moore says, it does hurt when the university “paints me as a recalcitrant thief stealing scholarship money.”

For their part the University of Alabama feels justified in protecting its trademarks, which its says in its filings that Moore violated by painting scenes from football games showing players in crimson and white uniforms without the school’s permission, and reissued previously licensed prints without paying royalties. The University is seeking payments for more than 20 paintings and a licensing fee for all future paintings.

U.S. District Court Judge Robert Propst ruled in 2009 that Moore’s paintings and prints did not violate trademark law, but he said Moore’s sale of paintings on mugs, T-shirts and other items did infringe on Alabama’s trademark. Both parties to the suit appealed that ruling to the U.S. 11th Circuit Court of Appeals in Atlanta which heard the case last month. A ruling from that court could come at any time.

University spokeswoman Deborah Lane said in a published statement. “While we regret the necessity of having to involve the courts in this matter, the lawsuit was necessary since UA must protect the value and reputation of our trademarks, name, colors, indicia and logos, by determining who uses them, as well as when and how they are used.”

Lane, quoted in news stories in The Birmingham News, said the University of Alabama has licensing agreements with some 600 business owners and that supporters want to buy products “that benefit the university they love rather than an unlicensed competitor.

“The university asks that businesses — like (Moore’s) New Life Art — that profit from the university’s name and reputation pay a few cents in licensing fees out of each dollar they receive from the sale of merchandise bearing university trademarks,” she said. “These licensing fees fund academic scholarships for UA students.”

Twenty-seven universities have filed friend of the court briefs in support of the University of Alabama. The American Society of Media Photographers and the Alabama Press Association filed similar support documents for Moore’s claim that his first amendment rights trump trademark law.

Much like the artist Richard Rush case, in which Tiger Woods trademark rights and right of publicity were found to not supersede Rush’s first amendment rights, the Moore/University of Alabama case is being closely watched. Depending on what happens with further appeal, the case could go to a jury trial or even to the Supreme Court.

“To me this is a spiritual battle. Free speech is a God–given right secured by our constitution. I am a firm believer that the constitution gives us the right to express ourselves freely. If I sell that expression it doesn’t matter, I am still protected. I’ve seen God’s hands in all of this, just like in my career. It has been seven years, but time is all I have, time and talent. I feel like I am a better person for having gone through this. I don’t feel like I was given a choice. I would have had to surrender the first amendment rights that God gave me. Some things are worth fighting for,” Moore says.

One Response to “Whose Image is it Anyway?”

  1. Great article on this whole situation. The quote by Deborah Lane is misleading and isn’t entirely true though. She says,

    “The university asks that businesses — like (Moore’s) New Life Art — that profit from the university’s name and reputation pay a few cents in licensing fees out of each dollar they receive from the sale of merchandise bearing university trademarks,”.

    The problem with this statement is that CLC isn’t mentioned. They require upfront fees that can amount to thousands of dollars and annual renewal fees for potential licensees. But the worst part for an artist is that they have control of your product and decide whether you can sell it or not. When I read that in their application documents I was blown away. If everyone knew the whole story they would understand that Daniel Moore was not fighting this because of money, like some have suggested, but for his (and other artists) rights as artists. The worst thing for an artist is for someone else to be able to tell you whether you can sell your art or not. Most artists would rather not create than to have a company like CLC control their creations. Thank you Daniel Moore for spending your money and your time to fight this. From one artist to another, I’m thankful for your courage and concern for our artistic rights.

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