By: Olivia Bravo

The Legacy of Protest Art and Artists 

Throughout history, activists have used art as a powerful tool to challenge the status quo and inspire change. From the French Revolution to the Civil Rights Movement, protest art has played a vital role in shaping society and shifting perspectives. 

Art is a universal language. Unlike mainstream activism and engagement, protest art is a powerful way to distill complex issues into imagery that resonates emotionally, cutting through the noise of politics. Many protest artists have become the visual symbol spearheading entire movements, while, in other cases, individual works of art become a movement’s shining north star. 

For example, American artist Keith Haring, recognizable for his bold, colorful murals, has addressed disparate and polarizing issues through his art, with topics including AIDS, drug addiction, and nuclear disarmament. Similarly, anonymous street artist Banksy is known for his politically charged artwork displayed in public locations. His work often accompanies messaging related to war, poverty, and inequality and has been featured in galleries all over the world. 

In other cases, a single work of art by a relatively unknown artist can be a beacon for an entire movement. After Derek Chauvin fatally knelt on George Floyd’s neck on the corner of 38^th Street and Chicago Ave. in Minneapolis, artist Peyton Scott Russell painted a 12-foot mural of Floyd in his honor. That mural became the beacon for the Black Lives Matter movement. The image of one man’s face stirred feelings of grief and outrage, igniting a larger call to action regarding police brutality and a racial reckoning throughout the country. 

In today’s political and social ecosystem, artists and activists have more material than ever to comment on. Protest art has powerful potential to impact society. “If art holds up a mirror to the culture, artists are the pivotal agents of cultural change. Whether to inform others of an issue or to persuade them to join in opposition to it, art and its creators have more power than we are willing to admit.” But what protection do these inspirational activists have to express their voices through art? Is the street art and graffiti often created by these activists protected through the same mechanisms as other forms of art under the law?

Artistic Expression is Protected Under the Constitution 

The First Amendment provides significant protection to artistic expression and, as a result, severely limits the government’s right to censor controversial works in most contexts. The First Amendment protects freedom of speech, which extends to the freedom of expression, encompassing expressive conduct and nonverbal speech. Federal, state, and local governments cannot restrict artistic expression based on its message, ideas, subject matter, or content, except in special cases such as preventing crime or breach of peace. However, while artistic expression is protected by the First Amendment, destruction of property and vandalism are not, and leave protesters vulnerable to charges by law enforcement. Therefore, the fundamental tension between protest art like graffiti and street art lies within the scope of property rights. 

Activists constantly face legal challenges when creating protest art, often taking the form of criminal vandalism or civil destruction of property claims. Street art: murals and graffiti have long been associated with political unrest and are often conduits for protest art. However, where graffiti on bathroom stalls and on underpasses is unintentionally and unwillingly seen by the masses, protest art is often erected in public forums to elicit the most viewers and pack the biggest punch. While some street art is legal if it is being commissioned, in most jurisdictions, graffiti as a form of artistic expression is considered vandalism and defacement of public property. Trying to strike the difficult balance between creativity and regulation, many cities aim to encourage artistic expression, while still protecting the property rights of public spaces. This provides a legal challenge for protest artists. As a result, contemporary artists have begun exploring new media to promote their messaging such as chalk art, light projections, and washable paint. By working in temporary mediums that do not “damage,” modern protest artists are able to express their First Amendment rights without violating property laws. 

Protest Art in the Modern Era  

In addition to using permanent graffiti, street artists could utilize digital media to share their pieces with a broader audience and create something that lasts forever. In this new age of technology, activists should consider taking to social media to disseminate their message. Social media is often the battleground for political arguments and fights in the comments, but it can also be an avenue for social activism. Protest artists should now consider how moving from graffiti and street art to digital media might affect their intended messaging, and whether art in the digital era has the same potential to inspire change. 

#WJLTA #ProtestArt #Censorship #FreedomOfExpression

By: Lezlee Zapatka

The emergence of Name, Image, and Likeness (NIL) rights has fundamentally reshaped college athletics. For decades, student-athletes were prohibited from monetizing their personal brands, with universities and the NCAA enforcing a rigid framework of amateurism. Name, Image, and Likeness rights are not new in college athletics. The idea has roots starting in 1956. Landmark state laws and NCAA policy changes in 2021 ushered in what we now know as the NIL era, creating opportunities—and legal challenges—across the collegiate sports landscape. One such legal challenge has emerged at Florida State University (FSU), where Leonard Hamilton, the school’s head basketball coach, faces lawsuits from former players. At the heart of these disputes lie foundational concepts of contract law: offer, acceptance, consideration, and breach.

Understanding the Legal Context: NIL and College Athletics

The advent of NIL rights allows student-athletes to profit from endorsements, sponsorships, and other commercial ventures. While this represents a seismic shift in college sports, it has introduced a host of legal complexities. Schools, coaches, and athletes must navigate an evolving regulatory environment which includes state laws, NCAA guidelines, and contract laws arising from private contracts with NIL collectives or sponsors.

Leonard Hamilton, the Seminoles’ all-time winningest coach, finds himself embroiled in litigation stemming from NIL disputes. The lawsuit brought against him raises critical issues about the enforceability of NIL-related agreements and the potential for conflicts between institutional policies and individual athletes’ rights.

The Lawsuit Filed Against Leonard Hamilton

The lawsuit, filed on behalf of six former players, alleges they did not receive the $250,000 in NIL compensation that Hamilton promised to provide. Plaintiffs claim that Hamilton’s actions interfered with their ability to fully capitalize on NIL opportunities, constituting breach of contract and fiduciary duties. The four counts stated in the complaint are breach of contract, promissory estoppel, fraudulent representation and inducement, and negligent misrepresentation.  

These allegations highlight key contract law principles:

1. Formation of Contract: At the heart of the complaint lies the assertion that a binding agreement was entered into between the parties. This hinges on the foundational elements of contract formation: offer, acceptance, and consideration. The plaintiffs contend that a valid agreement was formed and that Hamilton explicitly or implicitly consented to its terms during an April, 2023, “NIL” meeting. During the meeting, Hamilton “told each of the players on the roster, including the Plaintiffs, that they would each receive $250,000.00 as a NIL payment in exchange for their commitment to participate and play for the team, with the payment to be delivered to them well within the end of the 2023-24 season”. The complaint goes on to state, “every player on the 2023-24 FSU men’s basketball team roster relied on the promises that Hamilton made when they either decided to transfer to FSU or remain enrolled at FSU and play out the season”.
2. Breach of Contract: Plaintiffs claim Hamilton failed to perform obligations laid out by  the agreement. Whether this involved non-performance, defective performance, or an outright refusal to fulfill contractual duties, the allegations suggest that Hamilton’s actions (or inactions) constitute a material breach, undermining the purpose of the contract.
3. Damages and Remedies: The plaintiffs seek remedies, presumably monetary damages, to compensate for any losses incurred due to the alleged breach. This reflects the ultimate goal of contract law:  placing the non-breaching party in the position they would have been in had the contract been fulfilled.
4. Potential Defenses: Despite the allegations outlined in the complaint, contract law principles allow the defendants to assert various defenses. To defend against the complaint, Hamilton may cite lack of mutual assent, ambiguity in the agreement, or any external factors which may have rendered his performance impossible. 

Institutional Policies vs. Individual Rights

Another critical element of these lawsuits is the tension between institutional policies and individual athletes’ rights. Many universities, including FSU, have implemented NIL guidelines to ensure compliance with NCAA rules. These policies often require athletes to disclose NIL agreements and prohibit deals that conflict with team values or existing sponsorships.

If Hamilton’s alleged actions were driven by a desire to enforce such policies, his defense may hinge on whether those policies are consistent with Florida’s NIL law. For example, Florida’s NIL statute prohibits schools and their employees from directly compensating athletes for their NIL rights. However, the statute does not explicitly address scenarios when a coach advises or influences an athlete’s NIL decisions. In the case at hand, the money promised to the players was not to come from one of FSU’s NIL collectives, but from Hamilton’s “business partners”. This legal gray area underscores the need for clearer regulatory frameworks around where NIL money comes from and is funneled through prior to being promised and distributed to players. 

Legal Remedies to the Hamilton Lawsuit and the Path Forward

If the courts find merit in the plaintiffs’ claims, potential remedies could include compensatory and punitive damages. If these damages are awarded the athletes will be compensated for lost NIL earnings, while the punitive damages assist in deterring and preventing similar conduct by Hamilton and potentially other coaches in the future. 

The court will likely find the plaintiff’s claims meritorious. The six players relied to their detriment on the promises of Coach Hamilton. Each plaintiff committed to and played for the 2023-24 FSU men’s basketball team because they thought they would be receiving $250,000 in compensation. The players did not receive the promised compensation and in turn struggled financially, as shown in text messages with Will Cowan, an executive of Rising Spear – an FSU NIL Collective. As stated in the complaint, these players forfeited opportunities to participate at other universities and earn NIL money from NIL collectives affiliated with those universities and related NIL deals because they depended on the promises from Hamilton.

Looking ahead, the FSU lawsuits illustrate the urgent need for standardized NIL regulations. While state laws and institutional policies provide some guidance, they often leave room for broad interpretation and potential legal conflicts. Uniform federal legislation or revised NCAA guidelines could help reduce ambiguity and prevent similar disputes in the future.

Conclusion

The lawsuits against Leonard Hamilton underscore the complex interplay between NIL rights, contract law, and the evolving role of coaches in college athletics. As courts grapple with these issues, their decisions could set important precedents for how NIL agreements should be negotiated, enforced, and protected. For now, the cases serve as a reminder that the NIL era, while empowering athletes, also demands a careful balancing of rights, responsibilities, and relationships in the collegiate sports ecosystem.

#WJLTA #FSU #LeonardHamilton #NIL

By: Alex Tranquill

What is a famous design that really catches your eye? The Ugg boot, the Coke bottle, the iPhone shape? Well, as it turns out, the companies behind these products also recognized the economic value of these aesthetic features, leading each company to file for design patent protection to prevent copying by their competitors. Historically, design patents, such as the examples above, have been relatively easy to obtain and enforce against providers of similar products. But now, after a recent Federal Circuit decision altered the obviousness standard for design patents, your favorite design may face a greater risk of being copied by infringers.

Obtaining a Design Patent

While the more-popular utility patent protects a product’s functional features, design patents protect what a product looks like. Similar to the examples of a boot, bottle, or phone, this can include a product’s shape, configuration, ornamentation, or specific coloration. Ultimately, to receive design patent protections, an inventor must apply at the United States Patent and Trademark Office (USPTO). There, the inventor must show the design satisfies each of the statutory requirements for a patent outlined in 35 U.S.C. §101-103; these provisions mandate the design to appear on a product and be new, non-obvious, and non-functional.

However, with only about 2% of applications being rejected for obviousness at the USPTO, the novelty standard for design patents has always been perceived as a relatively low bar to patentability. Still, this low bar for novelty has tangible benefits for businesses, with the average design patent costing around $2,000 compared to $20,000 for utility patents. As a result, companies have come to view design patents as a relatively inexpensive option for protecting their designs from wholesale copying.

The Changing Landscape of Design Patent Protections

While the USPTO may provide little resistance in granting design patents, this low bar for novelty inverts itself during litigation, where it has proven notoriously difficult to invalidate an opposing party’s design patent. Under the traditional Rosen-Durling test, a design patent can only be invalidated during litigation if the challenging party presents a first design that is “basically the same” as the patented design, and, further, provides a secondary design that, if necessary, fills in the differences between the first design and the patented design. 

But now, after nearly fifty years of case law built around this framework, the Federal Circuit has thrown out this test as “improperly rigid.” Earlier this year, the Court in LKQ Corporation v. General Motors concluded that the obviousness standard outlined in 35 U.S.C. §103 does not differentiate between utility and design patents. Therefore, design patents must be examined under the Graham factors––the standard test used to evaluate obviousness for utility patents. Under Graham, courts must now consider the following factors when evaluating obviousness: (1) the scope and content of prior designs, (2) the differences between the prior designs and the claimed design, (3) the level of skill required in creating the patented design, and (4) the motivation to combine the previous designs to create the same overall visual appearance. 

With this analytical change, many companies are now worried about the future value of design patents. Under Graham, courts may now apply broader criteria without first requiring a design to be “basically the same” as the patented one; this more-flexible standard could have two significant effects: (1) the USPTO may issue more obviousness rejections during the application process, and (2) previously-granted patents could be invalidated if re-examined during litigation. For businesses, this impact arguably undermines the perceived benefits of design patents since an increase in obviousness rejections is likely to balloon the costs of patent examination, while the increased risk of invalidation during litigation curtails patent strength. In fact, this risk of invalidation may give companies more leeway to create knock-off products, as enforcing these patents will become more laborious and costly if they are constantly challenged on obviousness grounds. 

Estimating the Full Impact

Ultimately, the full effect of the Federal Circuit’s LKQ decision will only become evident with time. While the Graham factors must now be applied when analyzing the novelty of design patents, courts can apply these factors in ways that either comport or greatly contrast with the previous standard under the Rosen-Durling test. One case to watch in determining the impact of LKQ is Columbia Sportswear v. Seirus. 

In this eight-year legal saga, Columbia sued their performance-clothing competitor Seirus for patent infringement over a wave-like pattern appearing on Seirus’s “Heatwave” products. While Seirus initially argued that Columbia’s ‘093 patent on a similar wave-like pattern should be invalidated, they were unable to prove that Columbia’s patent was obvious under the Rosen-Durling standard––but then, LKQ was decided. In the aftermath, Seirus immediately moved for relief, arguing that they should be able to dispute the validity of Columbia’s ‘093 patent under the less-rigid Graham factors. The District Court agreed with Seirus, acknowledging the “extraordinary circumstance[s].” Seirus is now expected to make invalidity arguments in the coming months.  

But, even after applying Graham to the prior art references shown below, it appears unlikely that the court will overturn its decision and invalidate Columbia’s patent for obviousness. Under Graham, we must first analyze the scope and content of the prior art. Here, each prior art reference includes alternating wave-like stripes of light and dark colors, thus rendering the uniformly-striped waves in Columbia’s design obvious. Next, under the second Graham factor, the relevant differences must be considered. While the “unwoven fabric for tires” reference includes shading between its wave-like patterns, this design fails to teach the wave-like gradient shown in Columbia’s patent, which moves sinusoidally across a multitude of wave-like stripes and provides a second, larger wave-like pattern. 

Under the third Graham factor, the design is evaluated from the perspective of a person of ordinary skill in the art, presumed to know all relevant prior art references. Although “unwoven fabric for tires” includes shading, there is no larger sinusoidal pattern formed across multiple wave-like stripes; therefore, knowledge of the prior art would not necessarily render Columbia’s design obvious. Finally, the fourth Graham factor is irrelevant as none of the cited references teach the larger sinusoidal pattern, thus no combination of the references would predict Columbia’s design. Ultimately, when the Graham factors are applied as they would be to a utility patent, Columbia’s patent is likely to be found valid, and, even in this close case, Graham will likely yield the same results as Rosen-Durling.

Predicting LKQ’s Effect on the Obviousness Inquiry This prediction for Columbia Sportswear is further bolstered by the USPTO’s recent decision in      Deckers Outdoor. Here, the court applied the Graham factors for the very first time, considering competing boot designs holistically. They concluded that ordinary observers would take notice of simple disparities in the height, proportions, and angles of various features on the boots, thus rendering Deckers’s design non-obvious. In this way, the court ultimately relied on the consumers’ gut reaction when evaluating differences between designs. Essentially, the court considered whether the difference was minor or whether it created a new overall impression for consumers. As demonstrated in Deckers, future applications of the Graham framework could evolve to focus on whether reasonable consumers can distinguish between designs when viewed holistically. As a result, the critical inquiry may return to whether a prior art reference is “basically the same” as the claimed design. If so, LKQ may have little practical impact on the outcome of obviousness challenges in design patent cases.

#patentlaw, #designpatent, #intellectualproperty