And then there is Pete Thamel’s trespassing and repeated phone calls to the Mathieu family, after they warned him to stay away. Tyrann Mathieu said:

“They called from blocked numbers repeatedly, asking me why I was dodging them”

“They came to my home and that of my elderly mother on multiple occasions.”

Tyrone Mathieu hired a law firm last week to attempt to stop SI’s interview requests. The letter from Irpino Law Firm in New Orleans is addressed to Peter Thamel and Sports Illustrated and reads in part, “You have been consistently harassing Mr. Mathieu and his family regarding personal issues. Mr. Mathieu informed you that they have no desire to respond to your inquiries. Despite repeated assertions of this position, you have trespassed on the Mathieu’s property and otherwise violated their privacy. Demand is made that you cease and desist from any attempts at making contact with Mr. Mathieu or any member of his family.”

Sheila Mathieu calls the article “unfortunate” and says she can’t understand why Sports Illustrated would respond so viciously to a family’s decision to keep private matters private.

“They twisted things and cobbled together details from past articles because we wouldn’t sit down with them.

We have always believed in being a tight-knit family. God first, family second, work and school third. That’s what Tyrann is doing now, and he’s on an avenue to success, making good grades and putting his life in order.”

Here’s a link to the article that is this month’s cover story.

[h/t Friends of the Program]

My problem with Pete Thamel remains the same…why spend your life trying to ruin the lives of college kids? Is that really a noble pursuit?

— Matt Jones (@KySportsRadio) October 17, 2012

Arkansas Game
SEC Championship against UGA

Check out the video above & share your thoughts:

The fans were nestled all snug in their beds,
While visions of championships danced in their heads.
Saban with a new trophy, wish I had one too!
We’re patiently waiting for the season to ensue…

When out on the field there arose such a clatter,
I sprang to my feet to see the Mad Hatter.
Away to Media Days we flew like a flash,
Reminiscing how Petrino left with a crash.

Highlight of the offseason, which passes so slow.
At least now there’s only a month left to go!
When what to my wondering eyes it appears,
But two new teams in a conference of peers!

With the old Mike Slive, so lively and quick,
We know this year, he’s a damn good commish.
More rapid than others his conference they came,
And he whistled, and shouted, and called them by name!

“Now Wildcats! Now Rebels! Now Gamecocks and Gators!
On Mizzou, On TAMU! Don’t listen to haters!
To the top of the world, we’re having a ball!
S-E-C! S-E-C! S-E-C to all!”

As the media tweeted and lifted hands to the sky,
Vandy’s coach stepped up, looking so fly.
Shouts from the podium, “Anchor Down” he spew,
Steve Spurrier was laughing, Will Muschamp was too.

Mark Richt, in a twinkling, I heard he dismissed,
The next Herschel Walker from Georgia’s big list.
As I drew my head, and was turning around,
Down the hall Hugh Freeze came with a bound.

He had seen the billboards, but was slightly confused,
It was Mullen’s state, Houston Nutt was abused.
At least things were different for those on the Plains,
Chizik won it all aboard the Cam Newton train!

Down on the Bayou, there’s an Aussie that punts,
And a Honey Badger who takes what he wants!
The Aggies and Mizzou are new to the scene,
They’ll be winning, but more like Charlie Sheen.

In Fayettenam, the Hogs are waiting their turn,
To see which DB’s Tyler Wilson will burn.
Derek and Joker can enjoy the hot seat,
How many teams do you think they will beat?

Drama last year was LSU fighting the bar,
Bray started us early throwing bottles at a car.
That’s life in this conference, I readily admit,
Get ‘em on the field, and let’s see these boys hit!

National Championships are easier than the SEC,
If you don’t believe, you can just ask Steve.
So now we sit and wait for the veterans to report,
And hope they are ready to hold down the fort.

Will the streak of six straight be ending this year?
Hell no! Start the tailgate and be ready to cheer!
Winning every championship is what it’s all about,
Here’s wishing every Saturday was a Saturday Down South.

Football is big business for SEC universities. So is intellectual property. Outside of athletics, IP generates billions for major research universities in patent royalties on faculty inventions. Nick Saban and Les Miles may not be Nobel Prize-winning scientists, but their ability to build and market successful football programs also generates a significant IP windfall in the form of licensing and trademark revenue.

Alabama officials were so gung-ho to defend its trademark turf that they’ve spent years litigating against Daniel Moore, an artist who has spent over 30 years painting and selling scenes from famous Crimson Tide games. Alabama knew about Moore’s work as far back as 1980. The school purchased numerous works from him over the years, and from 1991 to 1999 there were multiple agreements to produce “officially licensed” products based on Moore’s paintings. Alabama even issued Moore press credentials and invited him to produce a painting during a football telecast.

In 2002, Alabama soured on Moore and told him he would need to license “all of his Alabama-related products because they featured the University’s trademarks.” Alabama said this included any depiction of the school’s uniforms and colors. Moore refused Alabama’s demands and the university sued him in 2005.

Four years later, federal Judge Robert Propst issued a summary judgment with a split outcome. Propst said Moore’s use of Alabama’s uniforms in his paintings (and any prints of those paintings) was “fair use” and protected speech under the First Amendment to the United States Constitution. But his further marketing of his paintings on coffee mugs, calendars and other “mundane” products was purely commercial, and therefore infringed on Alabama’s trademark rights. Propst said those items were not protected expression under the First Amendment and “would likely result in consumer confusion,” since customers might mistake the items for officially licensed Alabama products.

Both sides appealed Judge Propst’s decision to the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit. Last week, a three-judge panel of that Court unanimously ruled in favor of Moore. Judge R. Lanier Anderson, writing for the panel, affirmed that Moore’s paintings and prints were “artistically expressive objects” that are “protected by the First Amendment.” Any use of Alabama’s uniforms in those paintings were “artistically relevant to the underlying works.” Furthermore, Moore “never explicitly misled consumers as to the source of the items, and the interests in artistic expression outweigh the risk of confusion as to endorsement.”

With respect to Judge Propst’s ruling for Alabama on the “mundane products,” Judge Anderson and the panel returned the case to Judge Propst for further proceedings. The panel did not expressly rule for Moore, but rather said there were still disputed facts that needed to be resolved by the trial court.

Artists vs. Athletes

Alabama prosecuted its lawsuit on the premise that Moore’s paintings somehow diluted the “strong” trademark the university maintained in its football uniforms. Judge Propst and the Eleventh Circuit disagreed. They found Alabama’s trademark claims “weak” and rejected the notion that Moore somehow confused people into buying his works by implying he had official sanction from the university:

[C]ontrary to the University’s argument that its trademarks triggered the sales of Moore’s products, the district court concluded with respect to the paintings and
prints that “the plays and Moore’s reputation established during a period when his
art was agreeably not licensed are what predominantly trigger the sales.”
[ … ]
We note that Moore’s signature was prominent on the
paintings, prints, and calendars, clearly telegraphing that he was the artist who created the work of art.

The Eleventh Circuit noted it was not the first appellate court to consider the issue of a sports figure claiming trademark rights over an artist’s work. In 2003, the Cincinnati-based Sixth Circuit rejected a trademark lawsuit brought by Tiger Woods against an artist who painted a collage of images of the famous golfer. In that case, Judge Anderson said, the Sixth Circuit “found that Woods’s image of the painting had artistic relevance to the underlying work and did not explicitly mislead as to the source of the work.”

Alabama claimed the Woods example was irrelevant since that dealt primarily with his “rights of publicity,” a form of IP that is given less legal protection than trademarks. Judge Anderson disagreed and said the case also involved trademarks and “false endorsement claims,” like the one Alabama made against Moore.

Honey Badger Don’t Care (About Free Speech)

Moore’s victory over Alabama does not necessarily a signal an overall weakening of sports-related IP claims by universities. The main reason Moore prevailed was that Alabama openly tolerated and encouraged his work for decades before abruptly deciding to assert trademark rights. Alabama’s willingness to litigate against Moore demonstrates that future artists will face strong resistance at the outset.

And we’re not just talking about the Crimson Tide. Last December, LSU made waves when it launched a preemptive strike against a number of individuals marketing apparel with the phrase “Honey Badger,” a reference to the nickname of Tigers player Tyrann Mathieu. LSU made trademark claims well beyond even Alabama’s lawsuit against Moore, claiming the right to restrict the use of the phrase “Honey Badger” and Matthieu’s number, seven, without the school’s express permission.

Of course, Mathieu himself wouldn’t earn any income even from LSU-licensed “Honey Badger” items due to the NCAA rules. As far as the NCAA and its members are concerned, players are just another form of intellectual property.

What’s appalling here isn’t so much the naked cash-grab by football programs that already generate millions in revenue annually. It’s the fact that universities—the self-proclaimed guardians of knowledge and free expression—would openly use the legal system to stifle personal and artistic expression. Stephan Kinsella, a LSU alum and libertarian anti-IP scholar, summed it up nicely when writing about the Honey Badger dispute last year:

Truly disgusting, but par for the course for our mercantilist, protectionist, IP-centric form of corporatism in which the powerful state helps big corporations (and socialist state universities) bully individuals and small competitors with pseudo-“property rights” like patent, trademark, and copyright.

Indeed, these trademark wars only further erode the credibility of the NCAA and its member schools when it comes to maintaining the fiction of amateurism and purporting to regulate the “ethics” of individuals.