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Warning: copyright infringement
Intellectual Poverty
Art, Expression and the Parody of Property

Daniel A. Moore is one of those schlock artists, like Thomas Kinkade and whoever does those velvet Jesus and Elvis interpretations or the singing bass. In other words, he’s wildly popular: Moore ’s “art,” which looks like photographs (he calls it “photofuturism,” or “five parts realism to one part motion,” not to mention six part oxymoron) draws its popularity exclusively from its subject: the University of Alabama ’s football team. Football in Alabama is not next to godliness and backwardness; it is first in that hollow trinity. The Alabama “Crimson Tide,” as the university’s athletic herd is called, is a religious franchise to which millions in the state and beyond pray, whirl and (in good tail-gate tradition) hurl over. So when it comes to University of Alabama fanaticism, what could be more prosaic than Daniel Moore’s art? The answer: The University of Alabama’s lawsuit against Daniel Moore. “Mr. Moore’s paintings, reproduced in prints and on merchandise, violated the university’s trademark rights, the suit said. It asked a federal judge to forbid him to, among other things, use the university’s “famous crimson and white color scheme,” the Times reports. “Athletes, sports leagues and universities around the nation have become increasingly aggressive in protecting what they say is their intellectual property, and their claims have met with a mixed response from judges and fans.”

Only “mixed” response? Why not disbelief? Why not outrage? Daniel Moore’s art may be schlock. It may be unoriginal. It may be downright stupid in its appeal to and immortalization of deadening and dullard moments on the gridiron. But a) no one should have the audacity to suggest that it isn’t art; that’s a decision left up to its consumers (leaving it to the “consumption” to indicate whether it is or it isn’t art); b) Moore’s work is obviously massively beloved, which goes a long way to excuse its aesthetic Kinkadeness and goes an even longer way to shut critics, including this vulgarly condescending diatribe, the hell up (for the record: I would never be so kind to Kinkade, who forfeits all indulgence by pretending that his work is in any way distinctive from soft porn). but, and most importantly, c) no one, especially a behemoth business like the University of Alabama, should have the right to impede Moore’s work either from being conducted (he’s no longer allowed at football games, even though for twenty years he had a sideline pass) or disseminated in any shape and on whatever mugs, rugs or wogs he pleases (I’m not sure what that last word means other than as a put-down of foreigners living in Britain, which I once was, but it’s in the title of one of Alexander Theroux’s novels—Three Wogsand when it comes to Alabama and the University of Alabama’s woggishness, it seems to fit perfectly).

The problem here is intellectual property law gone wild. In the United States (and any other country that takes its legal cues from the United States) intellectual property has become a corporate weapon used to prevent or snuff out any form of expression or reproductive transmission that might in any way (and usually in the most insignificant ways) infringe on a corporation’s potential to profit from one of its product. As often as not, lawsuits are slapped on artists, writers or disseminators for daring to do something that the corporation never thought of doing itself. Or for doing something the corporation just dowsn’t want done. They’re either jealousy suits or vindictiveness suits. Think of the case of Charles M. Gentile, the Cleveland photographer sued by the Rock and Roll Hall of Fame for selling pictures of the museum’s building; Mattel’s case against Tom Forsythe, who’d parodied Barbie by photographing her nude, a case Mattel thankfully lost; or the case against Alice Randall, author of The Wind Done Gone, a black-centered parody of Gone With the Wind: The estate of Margaret Mitchell sued to prevent publication, a judge agreed, but an appeals court threw out the injunction. In those cases the attackers’ arguments were based on the legal tack that the “products” were copyright infringements, an unsustainable argument in the Mattell and Gone with the Wind cases since a parody is by definition not an infringement but a transcendence of the product for other purposes. So what the attackers were really doing was attempting to prevent their product from being parodied, pure and simple—censorship by any other name. In the Rock and Roll Hall of Fame case, it was another matter of jealousy, as in the University of Alabama case, an attempt to control a product beyond the corporation’s sphere.

The perversity of the University of Alabama ’s lawsuit against Daniel Moore is that the University wasn’t producing his images—at least not in the way he was producing them. Like any American university, the University of Alabama is a big business and has its own shops and mugs and money-sucking merchandise, but the merchandise you find in the university’s shops isn’t likely to be hurt by artistic competition, and if it were—well, the University of Alabama is a state, therefore a government institution, therefore its claim to copyright infringements are as specious as if, say, the White House was to claim that I’m infringing its copyright (or misusing its “content”) by putting the word “ass” in 150-point letters under this picture. (For the record, nothing at the White House site can be copyrighted: it, like all of government, belongs to us, the people. Or did, anyway.) So what makes the University of Alabama different? More to the point: a sports event is in and of itself a public event. It depends on spectators in the stands and on a television audience to be the viable, fan-mad franchise that it is. The Crimson Tide wouldn’t be anywhere if it weren’t for legions of whirling dervishes praying to Daniel Moore art hanging in their living rooms, right next to photographs of Bull Connor and his dogs, or slightly worse. So the argument that the university “owns” the events that unfold on the gridiron—anymore than the Rock hall of fame “owns” the image of its building everyone can see from streetside—has the distasteful feel of that other once-rampant southern presumption that involved the ownership of human beings, down to their expressions.

There is desperation in the university’s lawyering. This is what the suit against Daniel Moore says: “Though skillfully prepared,” the art conveys nothing beyond the raw facts of football (I’m paraphrasing the way the Times described it here). Mr. Moore, the suit says, “literally replicates even the expression on the players’ faces in his prints and he adds no message whatever not conveyed by the play itself.” We’re no longer in the realm of law here, but of subjective judgments about art, what it is and what it ought not to be—questions lawyers have little to no right to pose, unless they’re ready to provide the answer. An answer that hasn’t been provided since the beginning of time. Which returns the case against Moore to a matter of resentment, vindictiveness, jealousy or more likely all three, Alabamians always being, as noted earlier, up for hollow trinities.

Of course, this goes well beyond Alabama . Intellectual property tyranny is an American epidemic. It’s spreading, with new victims every week. And it’s one of the reasons American culture and inventiveness is verging on stultifying itself to irrelevance in the name of corporate profit and jealousy. It’s the long term falling prey to the short term. It’s bottom-line stupidity. It’s intellectual headbutting. It has its place—in tail-gate parties maybe, and mostly at the receiving end of the latest hurl. Instead, and more often than not, it’s the law of the land.

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Tiger bitched and sued over that one too


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