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IP/Entertainment Case Law Updates

Bouchat v. Baltimore Ravens Limited Partnership

Fourth Circuit affirms grant of summary judgment in favor of defendants NFL and Baltimore Ravens, finding that use of team’s former logo incorporating plaintiff’s copyrighted work in stadium displays and film documentaries constituted fair use under the Copyright Act.

In this latest chapter in extensive copyright litigation over the Baltimore Ravens “Flying B” logo, Frederick Bouchat challenged the National Football League’s use of the logo in three videos featured on its television network and various websites, and the Baltimore Ravens’ display of images that include the logo as part of historical exhibits – a timeline, a highlight reel, and a significant plays exhibit – in the M&T Bank Stadium “Club Level” seating area. In prior lawsuits, the Fourth Circuit found that while the Ravens’ inaugural logo infringed on Bouchat’s drawing, the team’s use of the logo in other situations was non-infringing fair use. In this suit, the district court found that, in both cases, the defendants’ limited and substantially transformative use of the Flying B logo was non-infringing fair use under 17 U.S.C. § 107 of the Copyright Act. (Read our summary of the district court’s decision here.) The Fourth Circuit affirmed, concluding that the four nonexclusive § 107 factors supported a finding of fair use.

Under 17 U.S.C. § 107, the court must consider four nonexclusive factors in determining whether a use is fair: (1) the purpose and character of the use, (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 initially addressed the purpose and character of the defendant’s use of the Flying B logo in three film documentaries. The essential inquiry under the first factor is whether the new work is transformative and the extent to which the use serves a commercial purpose. The court noted that the Flying B logo initially served as the brand symbol for the team, its on-field identifier, and principal thrust of its promotional efforts. In contrast, each of the videos used the Flying B as part of the historical record to tell stories of past drafts, major events in Ravens history, and player careers. The court found that, because the videos used the historical footage to tell new stories and not simply to rehash the seasons, they used the Flying B logo for its “factual content” and were transformative. The court noted that the exceptionally insubstantial presence of the Flying B logo in the videos further supported a finding of transformative use.

The court also noted that while there was no doubt that the NFL produced and distributed the videos for commercial gain, a factor that weighs against a finding of fair use, it cautioned that an overbroad reading of the commercial sub-prong would eviscerate the concept of fair use. According to the court, the vast number of fair uses occur in the course of commercial ventures –news reporting, comment, criticism, teaching, scholarship, and research – which are generally conducted for profit. Here, the court found that the “substantially transformative” nature of the use rendered its commercial nature largely insignificant. The court thus concluded that the first factor, the principal focus of the inquiry, counseled strongly in favor of fair use.

The court found that the remaining factors of § 107 did nothing to tilt the scale. The second factor, the nature of the copyrighted work, was neutral, because the NFL’s transformative use of Bouchat’s original drawing lessened the importance of the logo’s creativity. The court also found that the third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, was given very little weight by the court, because although the NFL used Bouchat’s work in its entirety, the NFL had no choice but to film the whole logo in order to fulfill its “legitimate transformative purpose” of creating the historical videos at issue. The court also held that a transformative use renders market substitution less likely, and that the new transformative use is unlikely to supplant the market for the original. Consequently, the court found, in the aggregate, the four factors point in favor of a fair use finding.

Similarly, the court concluded that the use of the Flying B logo in certain historical displays located on the “Club Level” of the Ravens’ stadium qualified as a fair use. The court determined that the uses of the logo in the historical displays were not only transformative, but also fleeting, incidental, de minimis, and innocuous. The Flying B logo, as it was used in the Club Level displays, stated the court, was included merely as an incidental component of a broader historical narrative of the evolution of professional football in Baltimore. The court found that the insignificance of the Flying B logo – which was absent from large swaths of Baltimore football’s 100-year history – confirms the display’s transformative quality and militated in favor of a finding of fair use.

For more information, please contact Jonathan Zavin, W. Allan Edmiston, David Grossman, Tal Dickstein or Meg Charendoff.

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