Should Judges Be Art Critics?

We will soon find out what the courts in Alabama think of Daniel Moore's legendary painting "The Sack" . It is revered in Alabama for its depiction of the sack by Cornelius Bennett of Steve Buerlein, preserving Alabama's win over Notre Dame in 1986. It is so beloved in Alabama it holds a place of honor in the Bear Bryant Museum in Tuscaloosa.

That, however, has not stopped the University of Alabama's lawyers from dropping a lawsuit on Mr. Moore, claiming he has trampled on the University's intellectual property rights by painting the "famous crimson and white color scheme." The university particularly objects to Moore's attempts to profit from using his paintings of Tide football scenes on coffee mugs and T-shirts.

It seems a stretch to me that the University will be able to prevail. After all, it's not as if Moore has not used his artistic talent to interpret the games. In fact, the university thought so much of his work, he was given sideline passes for years. Just because his painting style is realistic should not mean that he loses first amendment rights.

As noted in the Times article, there is legal support for Woods position. In 2003, a federal appeals court rejected Tiger Woods attempt to stop artist from painting an image of his win at the 1997 Masters and including it in a collection of Masters winners. More well known by lay people, perhaps, Andy Warhol didn't breach Campbell's rights when he painted the soup can, which was reproduced endlessly and in innumerable ways.

I think Bama is really pushing the envelope here in a losing cause. Worse, it's angering its fan base in the process. From a public policy standpoint, the last thing we really need are judges set themselves up as art critics. Let's face it, they're lawyers, which should automatically disqualify them as all that knowledgeable about art.