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|Daniel Moore's first piece captured Alabama's goal-line stand against Penn State in 1979.|
Moore sold out 4,334 copies of his painting of Tyrone Prothro's acrobatic catch against Southern Mississippi in less than six weeks. Regular prints sold at retail for $150, while artist proofs cost $300. "We bought almost 400 of them and there are about 45 left," said Sherrill Barnes, owner of The Downtown Gallery in Tuscaloosa, which has sold thousands of Moore's paintings over the past 10 years. "He's just got such a following that as soon as he does something, people want to order it." That will be the case for Moore's latest piece of work, "Rocky Stop," a painting of Tennessee fullback Cory Anderson fumbling the ball near the end zone against the Tide on Oct. 22. And if Alabama prevails on Saturday, perhaps Moore will decide to commemorate it using his palette. Interestingly, not one Alabama trademark -- the script 'A,' the elephant mascot, the words "Crimson Tide," "Bama," or "Roll Tide" -- appear in either of this year's pieces. John Yarbrough has been distributing collegiate artwork since 1989. He says that Alabama sports art pulls in more than $10 million in gross sales each year. The business is so big that there are more than 10 artists who paint moments in Alabama sports.
|Moore's painting of Tyrone Prothro's amazing 2005 catch has been a big seller.|
According to Yarbrough, this year is the best year for artwork sales since 1993, the year after Alabama won its most recent national championship, and Moore's Prothro catch might be the fastest-selling piece of Alabama artwork that he's ever seen.Aside from a large swell of local public support, which include Alabama sophomore Josh Kidd assembling the signatures of 2,000 people opposed to Alabama's lawsuit, Moore might have some legal precedent on his side. That's because of a sports artist named Rick Rush, whose studio is in Tuscaloosa, of all places. In June 1998, Tiger Woods sued Rush's company for selling a picture of the golfer without his permission. The artist claimed that First Amendment rights trumped the celebrity's ability to enforce the rights to his likeness, and after five and a half years, and six figure legal fees, Rush's defense had prevailed at every level. "Anchors on 'SportsCenter' don't have to refer to a highlight by saying, 'A tall African-American wearing No. 4 in the red and white uniform scored a basket,'" Rush says, "so why does Daniel have to get permission from Alabama to paint a scene in its history?" But that does not mean it's a slam-dunk case for Moore. "Just because you have a registered trademark doesn't mean you can stop the world from talking about it or depicting it," said Amy Goldrich, a New York-based attorney who specializes in art law, who is not affiliated with this case. "Without fair use of trademarks, society would be deprived of important aspects of social critique and journalism. But the ultimate test for an infringement case like this will be whether there is a likelihood of confusion as to who is the source of the artwork." According to polls entered as evidence as part of the university's case against Moore, more than 10 percent of those asked believed that the school was sponsoring or approving some of Moore's unlicensed work. Moore obtained his first license for a painting with the university in 1991. He has since paid royalties on three more projects, all of which included Alabama players whose collegiate eligibility had expired when the piece was released. Moore says that he is willing to license some of his work through Alabama in the future, as long as it would not violate NCAA bylaws by collecting revenue on artwork depicting active players. Although there are rules on commercialism and amateurism, this instance would likely call for NCAA interpretation. But because of the pending litigation, the organization's spokesman, Erik Christianson, said he could not comment on whether or not the university was allowed to collect royalties in this instance. "All this is hurtful to Daniel because they've made it seem as if he has made himself wealthy by traveling on the tradition of Alabama as if he is a hitchhiker who has no merit of his own," said his attorney, Stephen Heninger. "Both Daniel and the university have benefited from his work." As it stands now, another football season will likely pass before the case goes to trial. In the meantime, Moore has promised other artists that he will not settle the case if it infringes upon his First Amendment rights and has sold a limited-edition set of prints to raise money for his legal defense fund. The risk is great -- if he loses, he'll have to pay three times the amount of royalties he would have paid the university if he licensed every item -- but he's confident he will win. So far, the university has no other active lawsuits against some of the other artists who have produced work without the university's approval. Alabama-based artist Roberta Wesley sells prints of her work, "Comes The Tide," which features elephants wading through a pool of crimson-colored water. She says a representative for the Collegiate Licensing Company -- which licenses out Alabama's trademark -- asked a few years ago why she didn't give royalties to the school. After Wesley said she believed she didn't have to, she didn't hear anything. That is, until the university called and asked for her permission to put her work on some of its T-shirts. "I understand why the university thinks they have a claim," Wesley said. "But the university treats me very differently from Daniel Moore and he's done more for the school than I ever will." Meanwhile, Moore's relationship with some university officials continues to deteriorate. According to David Jones, the owner of the Alabama Book Store, a school representative called last week to inform him that his Web site, which was linked off the school's official athletic site, could no longer contain Daniel Moore paintings. Jones said he built a separate Web site that includes Moore's paintings and will continue to sell them in his store since sales of his paintings continue to do well.
|Moore's painting of Cornelius Bennett sacking Notre Dame QB Steve Beuerlein is housed in Alabama's Paul W. Bryant Museum.|
Despite the legal battle, the 51-year-old is loving the season that Alabama is having. "I don't think about the lawsuit when I'm watching the games," he said. "A few people will not rob me of my rights and a few people will not rob me of my enthusiasm and school spirit."
Other Alabama alums aren't as forgiving as Moore.
"I have pulled out of the alumni association and I've decided they've received the last of my money," said Barnes. "This whole thing just made me furious. If they've got so much money to waste on a frivolous lawsuit like this one, they don't need my $50 a year." Moore is actually discouraging people like Barnes from retaliating in this manner. The only retaliation he's looking for is against Auburn, for beating his Tide by eight in the Iron Bowl last season. Darren Rovell, who covers sports business for ESPN.com, can be reached at Darren.firstname.lastname@example.org.