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 University isn’t suing Moore because it doesn’t like how he paints their football team. The University is suing because Moore’s paintings are available on merchandise (calendars, coffee mugs, etc.), and the University — which has its own football-related calendars and mugs to sell — is hoping to wipe out a competitor.
I think this is censorship, both in the technical sense of the government (through the court system) shutting people up, and in the broader sense of unfair duress being used to shut people up. U of A football games are public events, and an important part of local culture; as an artist, Moore has every right to paint about football games. The U of Alabama owns their team franchise, but they don’t own Mr. Moore’s mind, or Mr. Moore’s paintbrush; if they want to protect themselves from the horror of artists painting what they see, they should stop allowing the public to view their games.
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Arguably, if the Court rules in the University’s favor, that will be viewpoint based regulation. ((Viewpoint based regulation is “The regulation of expression because of the particular opinion or position that expression supports or rejects. Viewpoint based regulations are unconstitutional.”)) If Moore had done critical paintings of the U of A football team — had he, for example, created paintings criticizing the football team (justly or unjustly) for racism, sexism and homophobia — then he would have been entitled to strong First Amendment protection. But because his paintings boost the team, rather than criticizing it, it’s quesitonable whether Moore’s protected by the first amendment.
This is true of all sorts of fan creations, not just sports paintings. Henry Jenkins writes:
One paradoxical result [of current copyright law] is that works that are hostile to the original creators and thus can be read more explicitly as making critiques of the source material may have greater freedom from copyright enforcement than works that embrace the ideas behind the original work and simply seek to extend them in new directions. A story where Harry and the other students rise up to overthrow Dumbledore because of his paternalistic policies is apt to be recognized by a judge as political speech and parody, whereas a work that imagines Ron and Hermione going on a date may be so close to the original that its status as criticism is less clear and is apt to be read as an infringement.
[...] A key point here is that I regard all or at least most fan fiction to involve some form of criticism of the original texts upon which it is based — criticism as in interpretation and commentary if not necessary criticism as in negative statements made about them.
The public has a right — or it should have a right, anyway — to react to and interpret the culture surrounding us, including by making culture of our own in response. This has become especially important in the internet age. Before the net, fans still created “response art,” in zines and in APAs; but this art was for the most part hidden from the view of corporate legal departments.
Jenkins coins a phrase that I think should spread:”The public right to cultural participation.”
For me, the phrase, the public right to cultural participation is a key concept underlying the book’s discussion. If I had my way, the right to participate would become as important a legal doctrine for the 21st century as the right to privacy as been in the late 20th century. I argue elsewhere in the book that a right to participate might be abstracted from the combined rights listed in the First Amendment and the right to participate would include the right to respond meaningfully to core materials of your culture. In that sense, I might go beyond our current understanding of fair use.