Latest in the Frederick Bouchat and Baltimore Ravens logo saga
Since our last article was published on June 11, 2013,1 there has been some further action in the Bouchat-Baltimore Ravens litigation saga. As a refresher, 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. From 1996-1998, the Ravens’ used the Flying B Logo, which bore a striking resemblance to Bouchat’s drawing. Over the last 15 years, Bouchat has filed a plethora of unsuccessful copyright infringement lawsuits against the Ravens, the NFL and EA Sports. He has asked for over 10 million in damages for the defendants’ past and present use of his drawing.
As we have learned, Mr. Bouchat is not one to throw in the towel. Our favourite litigant is still finding novel ways to sue the Ravens and the NFL. Most recently, on December 17, 2013, Bouchat joined various NFL entities and the Baltimore Ravens as respondents to Bouchat’s appeal regarding the NFL’s use of the Flying B Logo (see last article for illustration) in three videos, photographs on its websites, and the Baltimore Ravens’ use of the Flying B Logo in exhibits in its club level seating area. The decision of US Court of Appeals for the Fourth Circuit2 affirmed the district court’s findings of November 19, 20123 that these were fair uses of the Flying B Logo. Courts must balance the copyright owner’s right to financially exploit his or her own creations with society’s right to benefit from the creative works of others. See the section titled “Reasoning” below for the criteria that courts use to determine whether a use of someone else’s work is considered a “fair use”.
Bouchat, determined as ever, went on to file a request for the US Supreme Court to hear his appeal from the US Court of Appeals, legally known as a “petition for a writ of certiorari”, which was promptly denied by the US Supreme Court on May 19, 2014.4 The following outlines a summary of the most recent failed appeal by Bouchat in his attempt to be compensated for his shield drawing (see last article for illustration).
Bouchat v Baltimore Ravens Limited Partnership, NFL Enterprises LLC, NFL Network Services, Inc., NFL Products LLC, d/b/a NFL Films, a subsidiary of NFL Ventures L.P., 737 F. 3d 932 (4th Cir. 2013).5 The case was decided on December 17, 2013.
The NFL used the Flying B Logo in three videos as well as various photographs featured on its television network and numerous websites. Additionally, the Baltimore Ravens used the Flying B Logo in its club level seating area exhibits in its stadium. Bouchat appealed the district court’s decision that the defendants’ use of the Flying B Logo in the videos, websites, and club seating area were fair uses and Bouchat’s copyright was not infringed.
The US Court of Appeals for the Fourth Circuit affirmed the district court’s holding that the use of the Flying B Logo in videos, websites, and club seating area exhibits were fair uses and thus Bouchat’s copyright was not infringed.
The court applied the following four fair use factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market for the copyrighted work.6 The court also applied the fair use doctrine’s guiding principles that it “fosters new creation and innovation by limiting the ability of writers and authors to control the use of their works.”7 Although the Flying B Logo was not altered, the court cited Vanderhye in holding that “[t]he use of a copyrighted work need not alter or augment the work to be transformative in nature. Rather, it can be transformative in function or purpose without actually adding to the original work.”8 Therefore, the work will be seen as transformative if the new user establishes a novel meaning or use that is different from the creator’s meaning or use of the work.
Purpose and Character
The NFL’s use of the Flying B Logo in its videos and photographs were held to be incidental and transformative under the first fair use factor. The court cited the Supreme Court’s definition of transformative in Campbell v Acuff-Rose Music, Inc., where a rap group’s parody version of the song “Pretty Woman” was held to be a fair use. By making a parody of the original song, the meaning of the work had been “transformed”, thus satisfying the first fair use factor mentioned above. Similarly, the court in Bouchat held that the use of the Flying B Logo added something new, with a further purpose or different character, altering the first with new expression, meaning, or message.9
The original use of the Flying B Logo was to identify the team and served as the brand symbol for the team. The NFL’s videos and photographs were used as part of a historical record to tell the story of past drafts, major events and former players.10 This is to be contrasted against the court’s prior decision in Bouchat IV that the use of the Flying B Logo in season highlight films was not transformative.11 The use in the highlight films was to identify the team and as part of a historical record of a different story or event, as is the case in this appeal.
Moreover, the Baltimore Ravens’ use of the Flying B Logo in the exhibits in its club seating area was incidental and transformative. The Flying B Logo was only displayed in a fraction of the historical exhibits and was used to as part of an effort to document major events in the Baltimore Ravens’ history.12 This is a different use than the original use of identifying the team and a forming a symbol for the team’s brand.
Remaining Factors and Conclusion
The second and third fair use factors did not weigh against fair use and the effect of the use upon the potential market for the Flying B Logo was minimal and outweighed by the “substantially transformative nature of the use”.13
The court went on to hold that “[i]f these uses failed to qualify as fair, a host of perfectly benign and valuable expressive works would be subject to lawsuits. That in turn would discourage the makers of all sorts of historical documentaries and displays, and would deplete society’s fund of informative speech.”14 The court also stated that “[a]ny other result would visit adverse consequences not only upon filmmaking but upon visual depictions of all sorts.”15
Key legal principles
- If the use of the work changed from its original use then it is transformative, even if the physical characteristics of the work itself are unaltered.
- The four fair use factors must be weighed together in order to determine if there was a fair use.
Future of the Bouchat Litigation Saga
Mr. Bouchat has seemed to try almost every possible legal angle to be compensated for the shield drawing that he created in 1996. He has unsuccessfully attempted one too many legal laterals in hopes of scoring a game-winning touchdown. With the Supreme Court forcing one final turnover in denying his petition for a writ of certiorari, it might just be time for Bouchat to take a knee and call it a game.
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- Tags: American Football | Copyright | EA Sports | Intellectual Property | National Football League (NFL) | United States of America (USA)
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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.