A futile quest for compensation – Frederick Bouchat and the Baltimore Ravens logo controversy
The story of Frederick E. Bouchat is one of a man determined to strike gold from a simple drawing of a Raven logo that he designed in late 1995. That simple drawing has been the centre of controversy and fierce copyright litigation over the last 15 years between Mr. Bouchat, the National Football League’s (“NFL”) Baltimore Ravens and a number of other parties.
There have been nearly 10 decisions from the District Court of Maryland and the United States Appeals Court for the Fourth Circuit on this matter, the most recent of which happened in Bouchat’s lawsuit against the NFL and EA Sports, discussed further below. In all of his attempts at litigating the Baltimore Raven’s former logo, Mr. Bouchat has never been awarded a substantial amount of damages. However, after 15 years of litigation, there is a glimmer of hope for Mr. Bouchat in his relentless quest for compensation. A walk through the past decade of litigation will help set the table for what may be some redemption for the security guard and amateur artist from Baltimore, Maryland.
The Logo Controversy
On November 5th, 1995, Art Modell announced that the NFL’s Cleveland Browns franchise was relocating to Baltimore for the 1996 season. While the team name would be the Ravens, the franchise was still without a team logo.
Frederick Bouchat, an amateur artist from the Baltimore area, submitted on an unsolicited basis his drawing of a winged shield logo to the Baltimore Ravens’ stadium management group in April of 1996. In his letter to the organization enclosing the proposed logo, he requested only a signed helmet in return for the use of his drawing. On June 5, 1996, the Baltimore Ravens unveiled their Flying B logo, which bore a striking resemblance to Mr. Bouchat’s logo, referred to in this article and many of the cases as the “Shield Drawing”.
The Baltimore Ravens went on to use the Flying B as their primary logo until 1998, at which time the team opted for a different logo. Mr. Bouchat initiated a number of lawsuits against the Baltimore Ravens in 1998 for copyright infringement for their use of the Flying B logo from 1996 to 1998. This time around, Mr. Bouchat wanted more than just a signed helmet in return for his drawing. Instead, Mr. Bouchat claimed $10,000,000 in damages for all profits that the team earned in relation to its use of the Flying B logo.
Litigation from 1998-2004
In order to prove copyright infringement in the United States, Mr. Bouchat had to establish that he owned the copyright to the Shield Drawing and that the Ravens copied protected elements of his copyrighted work.1 The Ravens’ version of the Flying B logo was seen as an improvement to Bouchat’s Shield Drawing, which he created in 1996. Even though the Flying B logo was an improvement, Mr. Bouchat argued that it was still based on the Shield Design, and therefore the Baltimore Ravens substantially copied it.
Bouchat commenced his copyright infringement action in the District of Maryland against the Ravens and National Football League Properties, Inc. (“NFLP”), the entity that grants third parties the right to use trademarks of NFL teams. NFLP also played a role in creating the Flying B logo and licensing its use to a number of third parties. The District Court in Maryland split the case into two phases, a liability phase and a damages phase. In the liability phase, the jury found that Bouchat’s copyright in the Shield Drawing was infringed and the matter, after several unsuccessful appeals on the liability issue, moved to a trial on the damages issue. In the damages proceeding, Bouchat took the position that he was entitled to profits from the Ravens’ major sources of revenue including sponsorships, broadcast and other media licenses, ticket sales, general business activities including game day parking, sale of team merchandise and royalties from third party licensees who sell team merchandise. In a motion for partial summary judgment, the Ravens and NFLP were successful in excluding profits derived from all of these revenue sources except merchandising revenues.
In order to succeed in his claim, Bouchat had to prove under Section 504(b) of the US Copyright Act that the merchandising profits of the Ravens were “attributable to the infringement”. The jury concluded that the Ravens and NFLP proved, by a preponderance of the evidence, that merchandising revenues were attributable entirely to factors other than the Ravens’ infringement of Bouchat’s copyright. Bouchat was denied any monetary recovery.2
In separate legal proceedings, Bouchat commenced four additional actions against several hundred NFLP licensees for copyright infringement arising out of their use of the Flying B logo. Although the District Court held in favour of Bouchat on the copyright infringement claim, the District Court held that Bouchat was precluded from relitigating the issue of whether any of the licensees’ merchandising profits were attributable to the infringement of Bouchat’s copyrighted work. This is because the jury in the earlier case conclusively resolved that claim against him. The District Court also rejected Bouchat’s claim that he was entitled to statutory damages because Bouchat did not register his copyright prior to the infringing conduct.3
Taking a New Approach to the Litigation
When most litigants might have given up, Mr. Bouchat decided to take a new approach in his litigious pursuit of parties using the Flying B logo. He was determined to stay the course on his quest for compensation in hopes of leveraging the findings of copyright infringement to obtain a damages award. In 2008, he sought an injunction to prevent the Ravens, the NFL, and video game maker Electronic Arts (“EA Sports”) from displaying the Flying B in pictures, highlights, and memorabilia from the 1996 to 1998 seasons. The complained of uses included: (a) The sale of Ravens’ and other teams’ highlight films of the 1996-98 seasons in which Ravens players wearing uniforms on which the Flying B Logo could be seen; (b) Showing action film clips from the Ravens’ 1996 to 1998 seasons in which the Flying B Logo could be seen on player’s uniforms at Ravens and other teams’ football games; (c) Public displays of memorabilia of the 1996 to 1998 seasons, for example, a sheet of tickets from the Raven’s inaugural 1996 season on which the Flying B Logo was printed; and (d) Public displays of 1996 to 1998 photographs of players wearing uniforms on which the Flying B Logo at the Ravens’ team headquarters was visible.4 He also requested that all works containing the Flying B logo be destroyed so that the Ravens would no longer be able to infringe his copyright in the Shield Design.
The defendants argued that their use of the Flying B logo was purely for historical documentary purposes, and thus their use of the logo constituted fair use. Section 107 of the United States Copyright Code outlines four factors that are used to determine whether the copyrighted work was used in a fair manner: (a) the purpose of the use; (b) the nature of the work; (c) the proportion of the copyrighted work that was used; and (d) the effect the use had on the copyrighted work’s market value.5
When applying these factors to the case at hand, the District Court of Maryland held that the primary nature and purpose of the use was historical. The proportion of the highlight clips and memorabilia that contained the Flying B logo was inconsequential and the logo itself had no market value. Therefore, the fair use defence was accepted and the request for an injunction was denied.6
There was little surprise when the determined Mr. Bouchat appealed this decision to the Fourth Circuit in 2010. In a split decision, the Fourth Circuit held that the primary purpose of the logo in the highlight films sold by the NFL and the highlight films played during Ravens’ games were not historical; rather, the purpose was to identify the football players as members of the Baltimore Ravens. These were commercial and non-transformative uses and therefore the defendants could not assert the fair use defence. The Court of Appeal reversed the District Court of Maryland’s holding and remanded the case back to the District Court to determine whether granting an injunction was appropriate.7 This was considered a small victory for Mr. Bouchat after a decade of repeated losses and mounting legal fees.
A Glimmer of Hope
On November 9, 2011, the District Court of Maryland broke new ground in the Bouchat litigation saga. The court held that the Baltimore Ravens could continue to use the Flying B logo so long as the team paid Mr. Bouchat reasonable compensation for the use of his copyrighted work.8 Under section 502(a) of the United States Copyright Code, the court reasoned that an injunction was not an appropriate remedy since the public interest in the historical aspect of the highlight films outweighed the public interest in granting exclusivity of use to the copyright owner.9 The court conditioned its denial of an injunction on reasonable compensation being paid for use of the Flying B logo and ordered the parties to conclude an agreement on reasonable compensation for use of the Flying B logo, failing which the court would step back in and decide the issue.
Not surprisingly, the parties could not reach an agreement and on December 27, 2012, the District Court of Maryland awarded Mr. Bouchat a one-time payment of only $721.65.10 This figure represented a stream of small royalty payments that would be paid by the Ravens to Mr. Bouchat over the next 85 years for their use of the Flying B logo in their highlight films. If the Ravens displayed highlight clips containing the Flying B logo during a future NFL game, then the Ravens would also have to pay Mr. Bouchat $100.00 per clip shown.
In yet another group of copyright infringement actions, Bouchat sued: (i) the Ravens for displays at their stadium relating to Baltimore’s sports history which included pictures on which the Flying B logo could be seen; (ii) the NFL for use of the Flying B logo in the NFL’s Top Ten and Sound FX television series made available to viewers on the NFL Network, NFL.com and hulu.com; and (iii) the NFL and EA Sports for the use of throwback jerseys and helmets with the Flying B logo shown in EA Sports’ Madden NFL video games.
Motions for summary judgment based upon a fair use defense were consolidated by the District Court who found that the stadium picture displays and the NFL videos were non-infringing fair uses primarily because the displays and videos were substantially transformative uses. However, the Court sided with Mr. Bouchat against the NFL and EA Sports and held that the uses of the Flying B logo in the Madden NFL video game were not fair uses.
Subsequent to this decision, in a decision released in April of 2013 by the District Court, US District Judge Marvin Garbis released the NFL from the action on the basis that there was no evidence that the NFL licensed the Flying B logo to Electronic Arts or received royalties for doing so.
What to Look for Going Forward
Look for headlines in the coming months regarding a decision in Mr. Bouchat’s case against EA Sports. Based on the damages award by the Fourth Circuit in the earlier case, it is unlikely that Mr. Bouchat will be awarded a substantial quantum of damages. While Mr. Bouchat has shown his resilience and determination in fighting the Baltimore Ravens over the last 14 years, it seems as though his quest for compensation may end in futility rather than redemption. The real winners in this saga were Hogan Lovells, Quinn Emanual, Davis Wright Tremaine, White & Case and the law firms representing the deep-pocketed other defendants in these actions.
The only unanswered question at this point is whether Bouchat’s lead counsel Howard Schulman can throw a Joe Flacco-like legal Hail Mary late in the game á la Torrey Smith and score a last minute touchdown to win the game against EA Sports.
1 Bouchat v Baltimore Ravens Inc, 215 F Supp (2d) 611 (Dist Ct Md 2002).
2 Bouchat v Baltimore Ravens Football Club, 346 F Supp (3d) 524 (4th Cir Ct App 2003) citing Copyright, 17 USC § 504
3 Bouchat v Bon-Ton Department Stores, 506 F Supp (3d) 315 (4th Cir Ct App 2007).
5 Copyright, 17 USC § 107.
6 Bouchat v Baltimore Ravens Limited Partnership, 587 F Supp (2d) 686 (Dist Ct Md 2008).
7 Bouchat v Baltimore Ravens Limited Partnership, 619 F Supp (3d) 301 (4th Cir Ct App Md 2010). The Fourth Circuit did allow the fair use defence with respect to the use of the Flying B logo in the Ravens’ lobby.
8 Bouchat v Baltimore Ravens Limited Partnership, 100 USPQ (2d) 1719 (Dist Ct Md 2011).
9 Supra, note 5 at § 502(a).
10 Bouchat v Baltimore Ravens Limited Partnership, 105 USPQ (2d) 1403 (Dist Ct Md 2012).
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Jacob Goldberg is a 2014-2015 articling student at Cassels Brock. He first joined the firm as a summer student in 2012.
Jacob graduated with distinction from the J.D/H.B.A combined program at Western University and the Richard Ivey School of Business. He was awarded the A.B Siskind Scholarship for earning the highest average in his 3L graduating class as well as the Law Society of Upper Canada Prize for academic excellence.