C.E. Petit, in reference to a dispute in which the University of Alabama sued and blackballed a fan and booster of the school's football team over trademark infringement in his (very popular) paintings, writes:
Don't get the idea that I think this is "poor [alma mater]-- the law made them act like a bad guy" post. While I do think that the "defend it or lose it" aspect of trademark law is often a bit silly-- strike that; almost always a bit silly, and often counterproductive-- [alma mater] still blew it with its particular approach. A more-inventive approach might have involved hiring Moore as an adjunct professor of art with a specific exclusion of copyright in his contract, and paying him a dollar for teaching a seminar or studio class each year. Then there is no "market value" placed on the license that could muck up other actions. Too, the value of the museum's collection has no doubt been enhanced by the painting's increased value since acquisition; why couldn't the university consider that factor in tailoring a remedy? And so on.
Then he gets to the really interesting bit:
The ultimate problem is that too many lawyers-- and, oddly enough, an even higher percentage in art/entertainment/publishing law than I have encountered outside those areas-- are not very creative in resolving disputes. They push either a "boilerplate contract" or "hardball litigation." That isn't representing the best interests of the clients. It certainly isn't representing the best interests of the public. In that sense, I think art, in the broadest possible sense of the term, is "special"-- if only because of the public's First Amendment interests.
This is particularly true when dealing with fans and fan cultures, as taking a hardball approach with people who support and evangelize for your product and company (or school, in this case) is often totally counterproductive.
(Read the whole thing here.)