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IP/Entertainment Case Law Updates

Bouchat v. Baltimore Ravens Limited Partnership

Court reverses in part denial of injunctive relief to creator of the Baltimore Ravens team logo where defendant cannot establish fair use defense for depictions of logo in highlight films.

Plaintiff Frederick Bouchat owns the copyright to a drawing created in 1995 and proposed for use as the defendant Baltimore Ravens team logo (the “Shield logo”). During the team’s first three seasons, the Ravens displayed a strikingly similar logo design (the “Flying B logo”) on the side of their football helmet, on the field, and on other assorted objects. Bouchat filed an action against the Ravens for copyright infringement of the Shield logo. Although a jury found that the Ravens had infringed Bouchat’s copyright in the Shield logo, it awarded zero damages. Bouchat subsequently filed an action to enjoin the Ravens’ depictions of the copyrighted logo in season highlight films and in the Ravens corporate lobby. On November 21, 2008, the district court issued a decision determining that these depictions of the Flying B logo constituted fair use. Bouchat appealed the order, challenging the fair use determination.

The Fourth Circuit initially noted that section 107 of the Copyright Act provides a complete defense to infringement. The fair use inquiry, wrote the court, is guided by four statutory factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The court applied the fair use analysis to defendants’ use of the logo in highlight films and in their use of the logo in the team’s corporate lobby.

The court first considered defendants’ depictions of the Flying B logo in highlight films from 1996 to 1998. With regard to the first fair use factor, the purpose and character of defendants’ use of the Flying B logo, the court found that the commercial purpose of the highlight films was as objects of entertainment, marketed and sold to the public on the NFL’s website for fifty dollars. The court further considered whether defendants’ use of the Flying B logo is transformative. A transformative use, explained the court, is one that employs the copyrighted work in a different manner or for a different purpose from the original, thus transforming it. The court found that the logo in the films serves the same purpose that it did when defendants first infringed Bouchat’s copyrighted Shield logo design—an identifying symbol.

In so holding, the court disagreed with the district court’s conclusion that the purpose behind the use of the Flying B logo in the highlight films was “primarily historical.” The court further rejected defendants’ assertion that the dramatic editing, music, and narration in the highlight films showed a transformative use for the logo. Accordingly, the court concluded that the purpose and character of the use of the Flying B logo weighed against a finding of fair use in the depiction of the logo in highlight films.

The second statutory factor—the nature of the copyrighted work—also weighed against a finding of fair use of the Flying B logo in the highlight films. The creative nature of Bouchat’s creative drawings, wrote the court, would “tend to indicate that making a copy would not be fair use.”

In considering “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” the court found this factor weighed against a finding of fair use. The court commenced its analysis by instructing that “copying an entire work weighs against finding a fair use.” Bouchat’s entire work, stated the court, is reproduced in the highlight films. Here, the court disagreed with the district court which weighed this factor in favor of finding a fair use because “the Flying B logo, although depicted in its entirety, is not a major component of the entire work in which it is used.” According to the court, this conclusion was error because “a taking may not be excused merely because it is insubstantial with respect to the infringing work, for no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” Instead, what matters is the amount of the copyrighted work used.

Finally, the court stated that the fourth factor—the effect of the use upon the potential market for or value of the copyrighted work—is “undoubtedly the single most important element of fair use.” To negate fair use, the court noted, Bouchat need only show that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work. Initially, the court noted that the Ravens did not submit any evidence about potential markets. In concluding that a market for Bouchat’s copyrighted logo existed from 1996-1998, the court emphasized that defendants granted licenses and other forms of permission allowing the Flying B logo to be used by hundreds of manufacturers, distributors, sponsors, etc., in connection with their respective business operations. The court then ruled that defendants did not offer evidence to show that this market no longer exists, and determined there was a market for historic logos. After weighing together the results from the analyses of the four factors, the court concluded that the use of the Flying B logo in the highlight films is not a fair use.

Next, the court applied the four fair use factors to the defendants’ use of the Flying B logo in the lobby of the Ravens corporate headquarters, and found in this case that such use is a fair use. According to the court, the first factor weighs in favor of fair use because the display of the Flying B logo in a museum-like setting is consistent with the fair use example provided in the preamble of section 107. More importantly, stated the court, the use of the logo in a museum-like setting “adds something new” to its original purpose. Additionally, unlike the highlight films, the court found that there is no clear-cut commercial purpose behind the use of the logo in the Ravens lobby.

In applying the second factor—the nature of the copyrighted work—the court explained that this factor may be of limited usefulness where the creative work of art is being used for a transformative purpose. Although the court did not assign much weight to this factor, the durability of the copied logo’s creative expressions led the court to conclude that this factor tilts slightly against a finding of fair use.

Similarly, the court indicated that the third factor—the amount and substantiality of the portion used in relation to the copyrighted work as a whole—was neutral. Although defendants’ display of the entire logo militates against a finding of fair use, it does not preclude a finding of fair use. Here, the court noted that when the extent of the copying is considered with the purpose and character of the uses, the amount and substance of the copies are justified. The Ravens, stated the court, have no choice but to use the entire copyrighted work if they wish to display the inaugural season tickets and the photographs of their first ever draft picks in their original team dress. Accordingly, the court found that the amount copied is justified in relation to the transformative purpose behind the use.

The court held that the market effect factor weighed in favor of fair use. When the use is for a noncommercial purpose, explained the court, the likelihood of future market harm must be demonstrated by the copyright holder. In weighing this factor against Bouchat, the court emphasized that the transformative and noncommercial use in the lobby and the lack of evidence about the market harm required the court to decide the market effect factor in favor of a finding of fair use.

Finally, because the depiction of the Flying B logo in the highlight films constitutes an infringement of Bouchat’s copyrighted work, the court considered whether Bouchat’s pending suit against the Ravens seeking injunctive relieve is barred by claim preclusion. The court held that Bouchat’s claim for injunctive relief is not precluded because defendants failed to establish that the subsequent claim is identical to the first where Bouchat asserted a different claim for relief in the subsequent action.