Univ. of Ala. Bd. of Trs. v. New Life Art, Inc. - 683 F.3d 1266 (11th Cir. 2012)

Rule:

The Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. However, where items do more than propose a commercial transaction and are sold for money, it is of course no matter that the dissemination of speech takes place under commercial auspices. Like other expressive speech, paintings, prints, and calendars are entitled to full protection under the First Amendment

Facts:

Defendant artist painted football scenes involving the university's team wearing their uniforms. He reproduced these paintings as prints and calendars, as well as on mugs and other articles. The plaintiff university claimed that the artist had breached several terms of his prior licensing agreements and violated the Lanham Act by infringing the university's trademark rights in its football uniforms, 15 U.S.C.S. § 1125(a). The district court granted summary judgment to the artist with respect to paintings and prints, and granted summary judgment to the university with respect to calendars, mugs, and other mundane products. The parties appealed.

Issue:

Did the artist violate the Lanham Act when he painted scenes involving the university's team wearing their uniforms, and reproduced the same as prints and calendars? 

Answer:

No.

Conclusion:

Inter alia, the appellate court held that a 1995 licensing agreement between the parties was ambiguous as to whether the parties intended that the artist would have to obtain permission to depict the university's uniforms in his products. However, for paintings, prints, and calendars, the parties' course of conduct under the agreement clearly indicated that they did not intend that the artist would need permission every time he sought to portray the University's uniforms in his paintings, prints, and calendars. The court the concluded that the First Amendment interests in artistic expression so clearly outweighed whatever consumer confusion that might exist that there was no violation of the Lanham Act with respect to the paintings, prints, and calendars.