An Idea Only A Lawyer Could Love: Suing A Sports Team's Top Fan For Commemorative Paintings

from the not-such-a-smart-idea dept

We've seen an awful lot of stories lately concerning sports teams or leagues being overly aggressive in trying to "protect" intellectual property rights -- often concerning content they have no right to. The latest is the case of the University of Alabama suing an alumnus and one of its biggest fans for his commemorative paintings of big moments in University of Alabama football games, claiming trademark infringement. Even some people connected to the university admit that it seems like the type of thing that only a group of lawyers would think is a good idea. The paintings are quite popular and clearly show off a school spirit. The problem (though, it's not clearly spelled out in the article) is probably that the artist in question is selling these paintings and also putting it on merchandise. Sports teams and leagues often like to think they have full control over these things, but it certainly raises some questions about the limits of trademark law as to whether or not they really do. It's difficult to see how the university can claim "damage" from these paintings, which clearly have only helped build up school loyalty and spirit. In an age where viral marketing and "fan" support are increasingly important, it seems like bringing in lawyers with trademark claims is only going to cause more problems than it solves.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    dorpus, Nov 13th, 2006 @ 4:23am

    State Sponsored Religion

    Speaking as an Alabama resident, football is huge here. If you go to the Barnes & Noble here, the children's books section has stuff like "My First Alabama Football Team Book". (And an almost identical book for Auburn.) In Alabama, choices of schools, family ties, marriage decisions are affected by football loyalties. Cars have football team flags flying from them, families dressed up in football colors are a common sight.

    I'll also add that it's a black majority environment here. When I saw a movie yesterday, I was the only white guy in the entire 20-theater cineplex. The Wal-mart a mile from my place has about 80-90% black people. So yeah, all the cars and families I was talking about, I refer to black people.

     

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  2.  
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    dorpus, Nov 13th, 2006 @ 4:30am

    p.s.

    We've had an extremely cold winter here, with frost at night. Many buildings don't have heaters. I've felt cold more often here than in Michigan -- Midwestern buildings are usually overheated anyway.

    So much for the greenhouse effect.

     

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  3.  
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    Anonymous Coward, Nov 13th, 2006 @ 5:07am

    Thank you for the information dorpus, exactly how does that have anything to do with the article?

    While as a copyright holder myself, I understand how you want some control over your product/content/whatever, but this is ridiculous. Completely unacceptable legal action and any judge that does not throw this type of case out needs to be removed from his bench. Every time a judge allows a case like this to go anywhere, they are making the judicial system a massive part of the problem.

     

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  4.  
    identicon
    Professional Magazine, Nov 13th, 2006 @ 5:25am

    Thank you for the information,Every time a judge allows a case like this to go anywhere.

     

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  5.  
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    Anonymous Coward, Nov 13th, 2006 @ 5:32am

    dorpus....WTF???

     

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  6.  
    identicon
    Republican Gun, Nov 13th, 2006 @ 5:37am

    Judges

    The problem with judges is that they were once a lawyer.

     

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  7.  
    identicon
    dorpus, Nov 13th, 2006 @ 5:43am

    My point

    If the football culture wants to self-destruct, that's fine by me. The patent wars are just partisan battles between private-sector economic interests.

     

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  8.  
    identicon
    Dosquatch, Nov 13th, 2006 @ 5:58am

    Re:

    dorpus....WTF???

    That is the correct answer.

     

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  9.  
    icon
    slimcat (profile), Nov 13th, 2006 @ 6:00am

    Art vs merchandise

    When the artist started putting his work on merchandise, usually the domain of the University, I believe he might have gone too far, especially if the artwork is obviously Alabama football. If I remember correctly, there was a somewhat similar case involving the University of Oklahoma several years ago but I don't have time to look for it right now.

     

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  10.  
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    charlie potatoes, Nov 13th, 2006 @ 6:28am

    ah dorpus

    i remember dorpus. he is the one who castigated me for making what he called 'asinine' remarks..though he couldn't spell asinine...
    he said i made him laugh...he had no sense of the absurd, i assumed. perhaps i was wrong.
    what a moron...

     

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  11.  
    identicon
    dorpus, Nov 13th, 2006 @ 6:32am

    Re: ah dorpus

    I don't remember you, so you'll have to remind me who you are. You're hardly unique for being a dorpus hater around here.

     

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  12.  
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    Mike F.M, Nov 13th, 2006 @ 6:34am

    Seriously

    These cases just seem to get more and more rediculous as each one passes.

    Do any of these ever get further than threats?

    Oh, and Dorpus:...WTF?

     

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  13.  
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    LionXL, Nov 13th, 2006 @ 6:34am

    ^I agree, selling paintings is one thing. BUt start merchandising them, that's going a bit far....I mean would you all think the same way if some one was say...painmting pictures of fords, and then start to merchandise those? MY belief, and I might be wrong, is that in the merchandising artwork which involves branding, should require the brand holders permission.

    and I also reiterate...DORPUS WTF???? what does a majority of 'black folk' have to with anything in that article? Are you taking your medication?

     

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  14.  
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    Mike F.M, Nov 13th, 2006 @ 6:39am

    I can see...

    ...what you're saying LionXL. However, you can't really compare fords to football. If someone tried to make money by using the ford images, which do have copyrights against them, I could understand them getting sued.

    As these are the individual's creations and are, undoubtedly, helping fans get involved and excited about this game, it can only bring good things to the club.

     

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  15.  
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    Anonymous Coward, Nov 13th, 2006 @ 6:42am

    dorpus

    Dorpus, you're the best!

     

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  16.  
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    jackThumper, Nov 13th, 2006 @ 7:12am

    People sell images of Fords all the time without Fords permission. Go to a major car show, and there will be images of all makes and model cars on T-Shirts. I'm absolutely positive that Ford doesn't track or license all of them. Nor do I think Ford cares if you place an image of a Mustang or '32 Ford on a T-Shirt and sell it. If it hade the ford logo on it that may be a different story. Bottom line to me is, if this guy is selling merchandise with a picture that he painted on it then it is his intellectual property. If he is placing any type of Alabama logo, seal, or mascot on the shirt that that belongs to the university. The university does not own the color crimson, the word Alabama, or any of the numbers on the players uniforms. If they do then we may all get sued just for mentioning them here without their permission.

     

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  17.  
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    jackThumper, Nov 13th, 2006 @ 7:15am

    P.S. War Damn Eagle

    Auburn would never sue a fan. We would definately sue an Alabama fan, but never an Auburn fan.

     

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  18.  
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    War Eagle Beater, Nov 13th, 2006 @ 7:18am

    nice game this weekend

    I think you should sue your quarterback for throwing the ball to the wrong team every down.

    Go Dogs!!!

     

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  19.  
    identicon
    Anonymous Coward, Nov 13th, 2006 @ 7:32am

    Re: Re: ah dorpus

    then explain to us all what is meant when several times, people reply to your comments with, "GO AWAY!"

     

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  20.  
    identicon
    teknosapien, Nov 13th, 2006 @ 7:34am

    I think the real issue to be decided here is weather or not an artists "vision" can be held to a copyright infringement. If I remember correctly a copy right is only infringed upon if it is exact. At one time there was a 10% law that basically stated if 10% had changed it was not copyright infringement. But that was back in the day of making T-Shirts and selling them on Dead tour

     

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  21.  
    identicon
    dorpus_is_a_troll, Nov 13th, 2006 @ 7:34am

    Techdirt would improve massively if they would ban such obvious trolls from their comments section.

     

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  22.  
    identicon
    Bob, Nov 13th, 2006 @ 7:41am

    Eiffel Tower

    If a painter paints his rendition of the Eiffel tower on his canvas and sells it, is he in violation of a trademark? This lawsuit just seems ignorant and rediculous... which seems to be the defacto standard in the lawyer world.

     

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  23.  
    identicon
    Anonymous Coward, Nov 13th, 2006 @ 7:46am

    Re:

    FTA
    The university’s lawyers seemed to take particular offense at Mr. Moore’s use of his paintings on merchandise like coffee mugs and calendars.

    In response, Mr. Moore did not hesitate to invoke his own intellectual property rights. “Because I own the copyright,” he said, “it’s my opinion that I can put it on anything I want to. I can put it on a tattoo on someone’s backside.”

    In response to teknosapien, I am looking at these paintings and they appear to me to be exact replicas of photographs taken at the game. And Mr.Moore's (the painter in question) arrogance displayed in the quote gives me reason to believe this goes back a ways.

    To me, there appears to be no artistic translation, or impression put into the paintings. They're very precise replicas of photos of the game, and I shudder to think that I might side with the lawyers in this case.

    Furthermore, dorpus, you ignorant racist idiot, GO AWAY.

     

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  24.  
    identicon
    Jim, Nov 13th, 2006 @ 7:48am

    Who owns the eiffel tower likeness? As far as I remember, it's not a corporation, er, football factory university.

     

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  25.  
    identicon
    Anonymous Coward #2, Nov 13th, 2006 @ 8:00am

    why

    why is everyone hating on dorpus? he's just voicing his opinion like the rest of you.. although not always perfectly in line with the subject at hand...

     

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  26.  
    identicon
    U-non-ee-mus, Nov 13th, 2006 @ 8:01am

    Clearing the Air...

    This is one of the most schizophrenic set of comments I've ever read. First, for everyone mentioning copyrights, knock it off. They are totally different than trademarks and comparing the law between the two is rarely fruitful. But to mention one point, someone said Fords are copyrighted. They might be to the extent that the body of the car took some creativity to create, but that is not infringed by taking a picture of it. LionXL really had it right. And when you see t-shirts bearing the Ford logo at trade shows, etc., they are either official Ford apparel or are counterfeit. It happens, but I seriously doubt Ford condones it.

    Dealing now with the case at hand, Alabama has every right to enforce its trademarks if there is a likelihood that consumers might be confused as to the source of the goods. I'm not talking about someone not knowing where they bought it or the name of the artist. What I am referring to is that if consumers might think that the paintings are official Alabama merchandise, the school can protect its mark. In fact, if they don't sue people who appear to be infringing their mark, they could ultimately lose their rights in it and be unable to derive any more revenue from it.

    And about the Eiffel tower, it is not trademarked. You can't trademark a building. If a company uses an artist's rendering of it as a mark for their company, that might be a different story...maybe. But painting a recognizable building is not trademark infringement.

     

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  27.  
    identicon
    Disgusted, Nov 13th, 2006 @ 8:09am

    Dorphus... I see your point, maybe he's trying to poin t out that they'll do anything and everything tp " get their hustle on"...

     

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  28.  
    identicon
    Brad Eleven, Nov 13th, 2006 @ 9:05am

    Civil suit, recommended by lawyers

    This is just another case (heh) of lawyers treating the law like a business opportunity. While it is ridiculous--literally worthy of ridicule--it's also further proof that we Americans on the whole are shifting from defining acceptable behavior in terms of "what we can get away with."

    It also validates the first of Plato's dialogues, whose conclusion is "to hire the [lawyer] is to hire a thief."

     

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  29.  
    identicon
    Brad Eleven, Nov 13th, 2006 @ 9:05am

    Civil suit, recommended by lawyers

    This is just another case (heh) of lawyers treating the law like a business opportunity. While it is ridiculous--literally worthy of ridicule--it's also further proof that we Americans on the whole are shifting from defining acceptable behavior in terms of "what we can get away with."

    It also validates the first of Plato's dialogues, whose conclusion is "to hire the [lawyer] is to hire a thief."

     

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  30.  
    identicon
    Steve Bryant, Nov 13th, 2006 @ 9:09am

    on the other hand

    Some sports teams are rolling out user-generated video fan sites, like this one for the Bengals.

     

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  31.  
    identicon
    Anonymous Coward, Nov 13th, 2006 @ 10:10am

    I disagree

    Universities are not only centers of education, but big business as well. Football teams pull in massive amounts of money for universities, and that amount of money is proportional to the school/teams popularity.
    The universities are the ones that create, train, build, and produce the teams. The things created by the university to promote their teams is the universities itself. I'm not sure what a university is legally classified as, but I am sure it is similar to a corporation.
    In this case, a university has a right to protect things that it creates on it's dollar to continue making money on that object/entity.
    When even alumni go about taking these logos, themes, etc. and using them for their own means (and I have no doubt this alumnus was profitting from his work) they are infringing on the universities rights.
    Does being an alumni give a former student a right to the universities trademarked material? Hardly. The student is in no way shape or form, even as an attending student, automatically authorized the use of copyrighted property on the sole basis of being a student.

    Group of lawyers, please. This is a university trying to watch out for it's bottom line, which it has every right to do.

     

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  32.  
    identicon
    dour-pus, Nov 13th, 2006 @ 10:32am

    Must have gotten beat up on slashdot

    So much for the greenhouse effect.

    What , did the people of slashdot slap you about so you came back here to post ?

    The universities are the ones that create, train, build, and produce the teams.

    So then they arn't institutions of higher learning?

     

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  33.  
    identicon
    Betaflame, Nov 13th, 2006 @ 10:57am

    Re:

    Actually, one thing that makes TechDirt so great is that they DON'T believe in censorship. And if you don't see humor in everthing dorpus writes you are thinking to hard on something with very little thought involved in it's creation.

     

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  34.  
    identicon
    Xiera, Nov 13th, 2006 @ 12:02pm

    Wow...

    Upon reading the article, my first response was "People constantly amaze me by reminding me how stupid they are."

    Upon reading the comments, my first response was "People constantly amaze me by reminding me how stupid they are."

    About the former, I definitely agree with preceeding statements that the sale of these items does not at all interfere with the college making money (they are not in the business of selling those items). In fact, they are probably benefitting by the sale of those items (as previously mentioned).

    HOWEVER, if the artist did not receive an okay from the university to use its logo, there could be a problem there. They may be going about it the wrong way, but there is potential for that issue.

    As for the latter, dorpus' first post is more about what's beyond the text of his response than its actual literal meaning (or at least it makes sense to me that way). And, yes, Americans are suing more now -- because they're lazy and because they can, and because if you could get millions of dollars (or even hundreds of thousands) without doing anything, wouldn't you?

     

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  35.  
    identicon
    Villiage, Nov 13th, 2006 @ 1:02pm

    Re: Re: ah dorpus

    Are you comming home, we miss you. With all the smart people around here we have nobody to make fun of.

     

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  36.  
    identicon
    I wonder why, Nov 13th, 2006 @ 1:10pm

    Dorpus

    Dorpus,

    I can call you Dorpus right, well no matter. I figured I would take a second to inform you that if you have a gathering of people who seem to dislike you, well then it seems to me that you are worthy of dislike by majority rule. After all, when someone is missing the required skills to reply to the posted topic we usually send them to a class to learn how to comprehend the meaning of English sentence structure. Maybe you should block off some time each day to read what in the hell you are responding to, and if that is too much for you, then have someone else who can read summarize it for you and then post the response. In the mean time, how about you rethink being a "funny guy" to people who are obviously interested in the topic and not your crazy ramblings. People have Myspace for that kind of crap

     

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  37.  
    identicon
    Disgusted, Nov 13th, 2006 @ 1:17pm

    RE: I wonder why...

    I'm just curious. Not for any reason other than curiosity. I WONDER WHY... Are you black? Not being racist or anything, I'm just curious...

     

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  38.  
    identicon
    PhysicsGuy, Nov 13th, 2006 @ 1:41pm

    Principles in the Philosophy of Dorpus

    Wow, someone actually suggested to ban dorpus... you're a fool... dorpus is 'what' brings interest to these articles. i refer to him as what as "dorpus" has transcended human limits. only dorpus can relate what he says to the intentions behind what he's saying. it leaves an amusing puzzle for the rest of us... best summed up by an Anonymous Coward above "dorpus... WTF???" ... without dorpus to throw down the occasional random line that only connects to the article through dorpus logic, i wouldn't laugh half as much as i do while reading the replies.

    if you haven't noticed i enjoy the use of "dorpus", i'm still unsure as to what if means, if anything, and where it came from, if anywhere... one day though, i see it as being used as a "name" turned insult. calling someone a dorpus, or there could be a group of dorpii. either way, keep the replies coming...

     

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  39.  
    identicon
    Disgusted, Nov 13th, 2006 @ 1:51pm

    I agree

    HELL YEAH PHYSICSGUY!!!!!

     

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  40.  
    identicon
    foofdawg, Nov 13th, 2006 @ 3:30pm

    So, did the guy actually "go" to these games he was painting portrayals of, or did he just make them up based on facts?

    I mean, if he went to the games (and possibly even watched them on television) can he not paint what he saw and sell it? It's a moment of his experience.

    I mean, it's not like he saw a ferrari, and then started building cars and selling them as ferrari's. He painted moments in time, which as far as I know, isn't illegal.

    Does this mean I can't paint pictures of my workplace and sell them, if they include the company logo?

     

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  41.  
    identicon
    free speech, Nov 13th, 2006 @ 11:32pm

    Re:

    You make a good point, had the artist merely painted realistic UAs, or whatever their trademarked logos might be, and then put them on mugs.

    However, the artist simply painted an historic event that used the logos and uniforms in a purely descriptive manner and did not stick them in there in a gratuitous fashion -- because in so doing, he might imply that UA was the source of origin or sponsors of the artwork. Instead, he created his own composition of the event in a work of art, and as such, he is the copyright owner of that artwork. It is his IP property. His First Amendment protection in that artwork is not lost because of the "canvas" he decides to print it on, including as he says, even rear end tattoos, if he so chose to do.

    A good example of this is that not just the original handwritten or typed manuscript of a novel receives First Amendment protection, but that protection extends to the myriad of commercial forms that manuscript could take: books, magazines, movies, audio tapes, radio broadcasts, online publishing, video games, etc. They would all receive the same protection afforded under the First Amendment as does the original manuscript.

    If an artist created a painting of Times Square, and included just the logos that were there at the time, would he/she have to get permission from each of the trademark holders to produce that painting on a mug, art print or some other substrate? I don't think so. I believe that artist could sell the artwork, in any form or fashion, to fans and visitors of Times Square.

    The University of Alabama is a state (government) owned school.

     

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  42.  
    identicon
    JackThumper, Nov 14th, 2006 @ 5:21am

    Ok, first of all the artist's paintings, as far as I can tell, do not have a school logo in them. The Alabama football uniform is about as plain as you can get. No logo, no names, and not even the word Alabama. Only a crimson jersey and numbers. So, the word logo should not be mentioned again. Although he does have some pictures of Bear Bryant, but I wouldn't be suprised if Alabama somehow has Bear Bryant copyrighted. By the way you can see the artists work at http://www.newlifeart.com/

     

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  43.  
    identicon
    Mr. B, Nov 14th, 2006 @ 9:33am

    Daniel Moore

    I'm an Alabama fan, an Alabama alumnus.
    I married an Alabama alumna, and we live in Alabama.
    My kids (2.5 and 6) love Alabama and despise Auburn.
    There. That should put my comments in perspective.

    Several things come to mind immediately.

    1. Considering the way the team has played the past few years, and the way things are shaping up for the future, Daniel Moore won't be busy painting great moments in Alabama football for a while.

    2. The lawyers are bored because they're not constantly fighting with the NCAA any more.

    3. Any money received from damages will go straight to the lawyers.

    4. Daniel Moore paintings (I've seen two actual paintings) are absolutely stunning in their detail. I don't know where he gets his source material but one can look at a painting and immediately know it's a Daniel Moore painting.

     

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  44.  
    identicon
    blossom, Nov 14th, 2006 @ 4:38pm

    Re:

    Thank you, Jack. FYI, while at the site I dug around and found a nice slide show of some of his work at http://www.asama.org/slideshows/moore/index.asp (sorry, I don't know how to make a link like you did). The slide show is on the American Sports Art Museum and Archives web site. They named Moore as the 2005 Sport Artist of the Year. Leroy Neiman has recently received the same award for 2007. Now there's a divergence of styles for you!

    After doing more digging on Moore, I found that he painted the Legendary Football Coaches commemorative stamp series, issued by the USPS in 1997. Lo and behold . . . there is Bear Bryant! I see Lombardi with the Green Bay Packers logo:

    http://shop.usps.com/webapp/wcs/stores/servlet/ProductDisplay?catalogId=10152&storeId=1 0001&productId=17225&langId=-1&parent_category_rn=13384

     

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