Nos. 09-16412, 10-10092.

683 F.3d 1266 (2012)

The UNIVERSITY OF ALABAMA BOARD OF TRUSTEES, Plaintiff-Counter-Defendant-Appellee, v. NEW LIFE ART, INC., Daniel A. Moore, Defendants-Counter-Claimants-Appellants. The University of Alabama Board of Trustees, Plaintiff, Counter Defendant, Appellant, v. New Life Art, Inc., Daniel A. Moore, Defendants, Counter Claimants, Appellees.

United States Court of Appeals, Eleventh Circuit.

June 11, 2012.

Attorney(s) appearing for the Case

Stephen D. Heninger , Heninger Garrison Davis LLC, Birmingham, AL, for Defendants-Counter-Claimants-Appellants.

Jay M. Ezelle , Tabor R. Novak, III , Walter W. Bates , Starnes & Atchison LLP, Birmingham, AL, for Plaintiff-Counter-Defendant-Appellee.

Susan J. Hightower , Pirkey Barber , Louis T. Pirkey , Austin, TX, J. Michael Murray , Berkman, Gordon, Murray & De-Van, Lorraine R. Baumgardner , Berkman Gordon Murray , Cleveland, OH, Mark P. McKenna , Notre Dame, IN, Michael Todd Sansbury , Spotswood, LLC, Birmingham, AL, for University of Arkansas, American Society of Media Photographers, Inc., Intellectual Property Law Professors, Amiei Curiae.

Richard Randolph Edwards , R. Charles Henn, Jr. , Jerr B. Swann , Kilpatrick Townsend & Stockton, LLP, Atlanta, GA, for Plaintiff, Counter Defendant, Appellant.

Robert Larry Bradford , Johnstone Adams Bailey Gordon & Harris LLC, Gayle L. Douglas , Heninger Garrison Davis , LLC, Thomas C. Phelps, III , Shane T. Sears , Bradford & Sears, PC, W. Staneil Starnes , Starnes Davis Florie, LLP, Birmingham, AL, for Defendants, Counter Claimants, Appellees.

Mark McKenna , Notre Dame, IN, for American Society of Media Photographers, Inc., University of Arkansas, Auburn University, Boise State University, Intellectual Property Law Professors, Amici Curiae.

Before MARTIN and ANDERSON, Circuit Judges, and SCHLESINGER, District Judge.

ANDERSON, Circuit Judge:

Since 1979, Daniel A. Moore has painted famous football scenes involving the University of Alabama (the "University" or "Alabama"). The paintings feature realistic portrayals of the University's uniforms, including helmets, jerseys, and crimson and white colors. Moore has reproduced his paintings as prints and calendars, as well as on mugs and other articles.

In 2002, the University told Moore that he would need permission to depict...

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