Every so often, a Hollywood film will come along that presents professional sports in an unflattering light. Think, for example, of Any Given Sunday from Oliver Stone. One of the noteworthy aspects of Stone's film is that the director created a fictional league (Associated Football Franchises of America) instead of using the NFL. In interviews after the film came out, Stone suggested that the NFL was "very sensitive" about what he was presenting onscreen, like domestic abuse among players. In all likelihood, the league wouldn't allow Stone to use team names, logos and uniforms, which it insists are trademarked.
But if Hollywood wanted to make a brutal film about concussions in football -- say, a film about Junior Seau, who killed himself last month -- would the NFL have any power to forbid a filmmaker from showing in-game action featuring San Diego Chargers uniforms?
For a possible answer, let's turn to the 11th Circuit Court of Appeals, which handed down a notable ruling Monday that addressed the use of trademarks like team uniforms in expressive artistic speech. The appellate court concluded that "First Amendment interests in artistic expression so clearly outweigh whatever consumer confusion that might exist."
The dispute involved the University of Alabama board of trustees suing artist Daniel Moore, who painted famous football scenes showing the school's team.
For many years, the University of Alabama was fine with Moore's works. The school sold them in its bookstore and even once invited him to make a painting on live television during a game. But in 2002, the University told Moore that he would need to license all of his Alabama-related products because they featured the university’s trademarks. After three years of bickering, the university brought an infringement lawsuit against Moore.
On Monday, the 11th Circuit gave Moore a big victory.
Judge Robert Lanier Anderson rejected the university's contention that Moore's paintings were more commercial than expressive speech, which would have meant that his work got less First Amendment protection. Yes, Moore sold his work for money, but the judge agrees with legal precedent in saying that the dissemination of speech can take place under commercial auspices.
The same holds true for Hollywood films: The movie business is a business, but no matter how many tickets are sold, films have typically been deemed artistic endeavors. Some lawyers worry that the increasing prevalence of product placement and branded content eventually might persuade a court to re-examine this, but that is an issue for another day.
Moving on, Anderson next addresses the question of whether Moore's First Amendment rights give way to the university's trademark rights.
To guide the decision, he notes some landmark cases, including Rogers v. Grimaldi, where Ginger Rogers sued the filmmakers of Ginger and Fred and unsuccessfully argued that the film's title falsely implied that she was endorsing or was featured in the film, as well as ETW Corp. v. Jireh Publ’g, Inc, where the publicity company representing Tiger Woods unsuccessfully sued an artist who had painted a collage of the golfer's images.
The Rogers decision dealt with a movie title and the ETW decision dealt with publicity rights, so the University of Alabama argued these cases were different. Here, Anderson addresses instances where "trademark law is being used to attack the content ... of works protected by the First Amendment" (emphasis ours).
This is of no small concern to Hollywood studios. Trademark holders are becoming more and more aggressive, and as one example, Warner Bros. is fighting French fashion house Louis Vuitton over the use of a knockoff handbag in The Hangover Part II.
Now, in a victory for Moore -- but maybe also for Hollywood studios that are fighting trademark owners over whether use of a mark can rise to the level of a violation under the Lanham Act -- the 11th Circuit adopts a pretty broad standard in weighing trademark rights vs. free speech protections. According to Anderson's opinion:
"We have no hesitation in joining our sister circuits by holding that we should construe the Lanham Act narrowly when deciding whether an artistically expressive work infringes a trademark. This requires that we carefully 'weigh the public interest in free expression against the public interest in avoiding consumer confusion.' An artistically expressive use of a trademark will not violate the Lanham Act 'unless the use of the mark has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless it explicitly misleads as to the source or the content of the work.'”
The judge adds that Moore's depiction of the University's uniforms is artistically relevant because the "uniforms’ colors and designs are needed for a realistic portrayal of famous scenes from Alabama football history."
Wouldn't the same reasoning apply if a filmmaker wanted to use an NFL team's colors and designs in making a film about Seau? Seems so. Still, it probably wouldn't hurt for the film to run some sort of disclaimer that such a film is not endorsed by the NFL. The league is known for being pretty aggressive on the trademark front, especially when it comes to protecting the "Super Bowl," but it may be on the verge of some trademark hits.