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Copyright Holder Sacked by Baltimore Ravens' Fair Use Defense: Fourth Circuit
Practical Law Legal Update 6-552-9026 (Approx. 4 pages)
Copyright Holder Sacked by Baltimore Ravens' Fair Use Defense: Fourth Circuit
by Practical Law Intellectual Property & Technology
| Published on 20 Dec 2013 • USA (National/Federal) |
In Bouchat v. Baltimore Ravens Limited Partnership, the US Court of Appeals for the Fourth Circuit affirmed the district court's finding that the Baltimore Ravens' use of its original "Flying B" logo in certain videos and displays was fair use and did not infringe Bouchat's copyright concerning the logo.
In Bouchat v. Baltimore Ravens Limited Partnership, the US Court of Appeals for the Fourth Circuit affirmed the US District Court for the District of Maryland's decision that the incidental use of the Baltimore Ravens' "Flying B" logo in three videos and in a Baltimore Ravens' stadium display was fair use and did not infringe Bouchat's copyright concerning the logo (Nos. 12-2543, 12-2548, (4th Cir. Dec. 17, 2013)).
In its 1996 inaugural season, the Baltimore Ravens began using a logo featuring a gold shield with a purple B in the center and purple wings extending from each side (Flying B logo). Before the Baltimore Ravens began using that logo, Bouchat:
- Created a logo that bore a strong resemblance to the Flying B logo.
- Provided the logo to the Maryland Stadium Authority chairman to pass on to the Baltimore Ravens.
This case is the latest in a series of litigations between Frederick Bouchat and the Baltimore Ravens concerning Bouchat's copyright infringement allegation against the Baltimore Ravens and the National Football League.
In its initial decision addressing the parties' dispute, the Fourth Circuit refused to set aside a jury's verdict finding the Baltimore Ravens and the NFL liable for copyright infringement (see (241 F.3d 350 (4th Cir. 2000) (Bouchat I)). Subsequently, the Baltimore Ravens adopted a new logo (Raven profile logo) and no longer used the Flying B logo on their uniforms and merchandise. However, the Fourth Circuit issued three additional opinions in lawsuits brought by Bouchat concerning the Flying B logo where the Court:
- Affirmed a jury award of zero dollars for the original infringement (Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514 (4th Cir. 2003) (Bouchat II)).
- Affirmed a number of judgments in favor of NFL licensees who had used the Flying B logo because Bouchat was precluded from obtaining actual damages against them (Bouchat v. Bon-Ton Dep't Stores, Inc., 506 F.3d 315 (4th Cir. 2007) (Bouchat III)).
- Found that footage of the Flying B logo in highlight films and in a short video shown during Baltimore Ravens home games was not fair use, but that the display of the logo in the corporate lobby was fair use (Bouchat v. Baltimorer Ravens Ltd. P'ship, 619 F.3d 301 (4th Cir. 2010) (Bouchat IV)).
In the present case, Bouchat sought to enjoin the Baltimore Ravens and the NFL from using the Flying B logo in the following instances:
- NFL's Top Ten: Draft Classes video. This video recounts the ten best NFL draft classes and features a four-minute segment on the Baltimore Raven's 1996 draft class. In two spots the Flying B logo is visible for less than one second each.
- NFL's Top Ten: Draft Busts. This video recounts the ten least successful draft picks. In one segment a football player is tackled and it is possible to glimpse the Flying B logo on another player's helmet.
- NFL's Sound FX: Ray Lewis. This video features a collection of footage of Ray Lewis throughout his career. In one eight-second segment, the Flying B logo is visible on some of the players' helmets. In other segments, the Flying B logo is visible twice, for less than one second each.
- The Club Level of the Baltimore Ravens' stadium. The Club Level of the stadium features a timeline, a highlight reel and a significant plays exhibit that chronicles Baltimore football history. These exhibits include images of the Flying B logo incidental to the overall exhibit.
The district court granted summary judgment to the Baltimore Ravens and the NFL, finding that the limited use of the Flying B logo qualified as fair use and consequently did not infringe Bouchat's copyright in his logo.
Use of the Flying B Logo in the NFL Videos
The Fourth Circuit analyzed the four factors that guide the determination of whether a particular use is fair use and determined that, on balance, the four factors pointed in favor of fair use.
Purpose and Character of the Use
The Court concluded that the nature and character of the Flying B logo's use in the NFL videos weighed in the defendants' favor because the use was:
- Transformative.
- Commercially insignificant.
The Fourth Circuit focused heavily on the Flying B logo's use as part of the Baltimore Ravens' historical record of:
- Past drafts.
- Major events in Ravens history.
- Players' careers.
In addition, the court noted that in each of the videos the logo was:
- Present for fractions of a second.
- Nearly imperceptible to anyone who was not specifically looking for it.
Although the Court acknowledged that the videos were produced for commercial gain, it agreed with the district court that the substantially transformative nature of the use rendered the commercial nature of the work insignificant. Specifically, the extent to which the Flying B logo provided commercial gain to the NFL was minimal and the use of the logo was incidental to the larger commercial enterprise of creating historical videos.
Nature of the Copyrighted Work
The Court noted that the second factor is less important when the creative work is being used for a transformative purpose. Although Bouchat's logo is a creative work, the Court concluded that the NFL's transformative use lessened the importance of the Flying B logo's creativity and thus this factor was neutral.
Amount and Substantiality of the Portion Used
Although the NFL used the Flying B logo in its entirety, the Court gave very little weight to this factor because of the transformative nature of the use. It also reasoned that it would not make any sense to allow the NFL to use the logo for factual and historical purposes but limit its use to only a portion of the logo.
Effect on the Potential Market
The Court noted that the transformative and transient nature of the use make it unlikely that the Baltimore Ravens' use of the Flying B logo would have an effect on any market for the original copyrighted logo.
Use of the Flying B Logo in the Baltimore Ravens' Stadium
The Court also considered the Baltimore Ravens' use of the Flying B logo in three stadium Club level exhibits and determined that this was fair use primarily because:
- The exhibits chronicled significant aspects of Ravens' history and the logo is included as an incidental component of a broader historical narrative.
- The logo as used in the exhibits no longer serves its original purpose. Instead of identifying the team, it is purely descriptive and preserves a specific aspect of Ravens' history.
- The logo's comparative insignificance as an element confirms the exhibits' transformative quality.
- The Club Level exhibits merely provide atmosphere on that stadium level suggesting the Ravens do not gain a commercial advantage from having the logo displayed.