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[self-portrait]Scrivener's Error Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.
20 November 2005

11:43 [GMT-6]

A Scheduling Nightmare
At first glance, a story at ESPN.com on painter Daniel Moore's problems with his alma mater (a name that shall not appear in this blawg) looks like just the mean old big media rights-holder going after the little guy again. A closer look reveals that it's at least as much about a serious flaw in legal doctrine that forces unpopular actions as it is anything else.

   Daniel Moore is a highly thought-of painter of sporting incidents. His painting of a sack by [his alma mater] against [another unnamed school]1 hangs in [his alma mater]'s museum, named after the individual who used to coach there, and appears to have a market value in excess of $250,000. (How much of that "value" is from its intrinsic worth and how much is from the rabid nature of [the alma mater]'s boosters is beside the point.) Thus, it's not "insult" that drives [the alma mater]'s lawsuit against Moore for dilution of its mark(s); it's the law.

The real problem is that trademark law, unlike copyright law, is "defend it or lose it." If [the alma mater] does not take vigorous action against Moore, a later party who really did infringe in an objectively unreasonable manner would have at least a partial defense, and might even successfully void registration of [the alma mater]'s marks.2 In that sense, [the alma mater] had to do something about Moore and his "profiteering" on the marks. Further, it could not make that action a simple slap on the wrist or retroactive license, because that would tend to set a market value for use of the mark that could harm [the alma mater] in going after true miscreants.3

Don't get the idea that I think this is "poor [alma mater]—the law made them act like a bad guy" post. While I do think that the "defend it or lose it" aspect of trademark law is often a bit silly—strike that; almost always a bit silly, and often counterproductive—[alma mater] still blew it with its particular approach. A more-inventive approach might have involved hiring Moore as an adjunct professor of art with a specific exclusion of copyright in his contract, and paying him a dollar for teaching a seminar or studio class each year. Then there is no "market value" placed on the license that could muck up other actions. Too, the value of the museum's collection has no doubt been enhanced by the painting's increased value since acquisition; why couldn't the university consider that factor in tailoring a remedy? And so on.

The ultimate problem is that too many lawyers—and, oddly enough, an even higher percentage in art/entertainment/publishing law than I have encountered outside those areas—are not very creative in resolving disputes. They push either a "boilerplate contract" or "hardball litigation." That isn't representing the best interests of the clients. It certainly isn't representing the best interests of the public. In that sense, I think art, in the broadest possible sense of the term, is "special"—if only because of the public's First Amendment interests.

To overuse a football analogy here, we've got a really depressing scheduling problem. Pretend for a moment that we're in the ACC, not the SEC. Every year, a number of other teams get to play Duke in football (and usually pay for it during basketball season, but that's another issue). They don't have the privilege of putting the JV on the field; they're still required to play the starters, because the pollsters and computer rankings will hurt them if they don't. In athletics, art, entertainment, and law, one doesn't get credit for reducing one's force to proportionality with the conflict in question.

  1. I refuse to name the two schools in question for two reasons. First, it's a sarcastic, reflexive commentary on the way that the plaintiff in the lawsuit in question is acting—without ascribing much blame for that action. After all, since this article criticizes the ethics of Moore's alma mater, I might be misusing its trademark… Second, I despise the football programs at (and fans of) the two schools in question for their historical unremitting, unalloyed arrogance—even more than I do the one at the Perfesser's root of all that is evil, and I grew up in Pac-8 country (which gives away more about my age than I probably should). Both schools (and their fans) project the attitude that they deserve, every year, to participate in big-time bowl games regardless of their relative strength.
  2. We'll leave aside for the moment that "more than 10 percent of those asked believed that the school was sponsoring or approving some of Moore's unlicensed work." More than 10 percent of those asked probably believe in the Easter Bunny. These polls are almost always constructed and run against an objectively unreasonable "market definition." I would be far from surprised to find out that the poll did not validate this "confusion" by asking two critical questions: (1) had the respondent ever purchased a comparable reproduction (let alone original), and (2) had the respondent ever knowingly purchased "unauthorized" art because the respondent liked the unauthorized piece more (as opposed to it simply being cheaper). Absent positive answers to those two questions, the "10 percent" isn't the proper market definition.
  3. The civil procedure nerd in me also notes that not only is the case arising in the Eleventh Circuit's geographical jurisdiction—the incubator of the ill-considered College Savings Bank/Seminole Tribes decisions—but [the alma mater] is quite probably an arm of the state government. But that's waaaaaay too much for Sunday morning. I need to finish this entry before the football games start!

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