Bouchat v. Baltimore Ravens – What’s Fair is Fair

The starting point for this story dates back to 1995. A security guard and an amateur artist named Fredrick Bouchat created the “Flying B logo” for the Ravens football team (“Logo”). He sent the proposed Logo, asking only for a letter of recognition and an autographed helmet. The Ravens ended up using the Logo prepared by Bouchat, without ever sending him the letter or the helmet. Bouchat has filed several lawsuits against the ravens and other related parties: In the first suit, he sued for infringement, seeking ten million dollars in damages. The court found that the use of the Logo infringed Bouchat’s copyright, but denied him the damages he was arguing for. Further litigation concerned more claims regarding damages, claims against NFL licensees, and the display of the Logo in season highlight films and in the Ravens’ corporate lobby.

In this suit, Bouchat seeks to enjoin the defendants from using the Logo incidentally in videos and photographs: three videos which appeared in the NFL network and several websites and the use of pictures with the Logo in historical exhibits located at a stadium. The district court found that the use by the defendants was “fair use”, mostly because it found that the use was “transformative”.

The first video featured a recount and analysis in short segments of the ten best NFL draft classes of all time. The video features a four minute segment on the Ravens. In two spots in this four minute segment, the Logo is visible for less than one second: once on a banner and a helmet at the opening of the segment and again on the side of a helmet.

The second video featured a recount and analysis in short segments of the ten least successful NFL draft classes of all time. This relevant segment of the video does not even relate to the Ravens, but to a player drafted by another team. The end of the segment shows a tackle, and it is possible to
catch a glimpse” of the Logo on a helmet, for a “fraction of a second”.

The third video is a collection of footage and audio of a former Ravens’ player. In this twenty four minute video, the Logo is visible for 8 seconds and twice later, visible for less than one second.

Bouchat argued (among other things) that the use cannot be fair use, since it is not transformative: the Logo is used to identify Ravens players. He further argued that even if the use is transformative, it should be weighed against the commercial nature of the use and the other fair use factors. The District Court found that all the alleged infringements were fair use.

Fair use, codified in 17 U.S.C. §107, is an exception which allows the use of a copyrighted work without the consent of the copyright holder. In determining whether the use is fair, §107 lists four factors to be considered: (1) the purpose and character of the use, including if the use is commercial or not; (2) the nature of the copyrighted work; (3) the amount used; (4) the effect of the use upon potential markets. Fair use has been described as “the most troublesome in the whole law of copyright”. Some scholars have argued that it is unpredictable, while others argue that the outcome can be foreseen. The Supreme Court has changed its approach to the application of the doctrine in the Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994) decision. Prior to the Campbell decision, the Supreme Court put the emphasis in the fair use analysis on the fourth factor: the effect on potential markets. The Campbell court placed greater emphasis on the first factor and adopted the “transformative” test: does the use add something new? Does it “employ the quoted matter in a different manner or for a different purpose from the original, thus transforming it”?

Due to the importance of the first factor of the fair use test, the Circuit Court’s analysis focuses almost entirely on the “transformative” analysis and the possible commercial nature of the use. The Court found that the use of the Logo in the videos was different from its original purpose. The Court found that the use of the Logo was for the purpose of historical record and not as a brand symbol for the team, which was its original purpose. This is an interesting aspect of fair use, which does not change the original work, but places it in a different context (similar cases in the past included the use of Grateful Dead event posters in a book about the band, in Bill Graham Archives v. Dorling Kindersley, Ltd., 448 F.3d 605 (2d Cir. 2006), and a case involving publishing explicit photos of Miss Puerto Rico in a newspaper, without the photographer’s consent, in Nunez v. Caribbean International News, Corp. 235 F.3d 18 (1st Cir. 2000)). The Court further concluded that the brief time in which the logo was shown also reinforces the finding of transformative use. The Court ruled that in two of the videos, the logo cannot even serve as an identifier of the Ravens players. The only video that does feature it for a long enough time (less than ten seconds), also portrays extensively the current Ravens logo, which is now used to identify the Ravens players. The Logo does not serve its original purpose anymore, and therefore the use is transformative.

After finding the use to be transformative, the Court turned to consider the commercial nature of the use, also included within the first factor. However, as the Supreme Court in Campbell warned, the courts should not over-emphasize the impact of this factor. Many activities which are meant to be protected by §107 are generally conducted for profit, but that does not negate a finding of fair use. This “commercial” inquiry is relevant when the work in question serves as a direct substitute to the copyrighted work. The Court found that the substantially transformative nature of the use and the limited nature of the use weigh against placing significant weight on the commercial nature.

Once the Court reached the conclusion that the use was transformative, the analysis for the rest of the factors was done very concisely. It is worth noting, that the finding of a use as transformative also reflects on the rest of the analysis, as the Court found that the third and fourth factor carry very little weight in light of the transformative nature of the use.

After completing its analysis, the Court went on to explore the rationales that justify fair use, quoting the famous line from Harper & Row, Publishers, Inc. v. Nation Entrs., 471 U.S. 539 (1985): “…the Framers intended copyright itself to be the engine of free expression”. An interesting point is that, although the Court chose to quote the Harper court on this matter, the Harper decision placed the fourth factor of fair use as the most important. As explained above, the Campbell court took the stand that the first factor, and specifically the “transformative” part of it, is of the greater importance, a stand which the Court in this case adopted completely.

The Court went on to describe the importance of fair use in allowing free speech and especially enabling film makers to document historical events (even if they are just “best drafts of the NFL”) without having to negotiate with every potential copyright owner who may choose to withhold consent or demand unreasonable licensing fees. One example is of a company wishing to avoid bad publicity by banning use of its logos in a critical film about it. The Court also went on to conduct a similar analysis on the other alleged infringement, and reached a similar conclusion.

This case joins a line of cases, which found “transformative” use even when the copyrighted work was used in its entirety, unchanged, but in a different context. The Court’s rationale weighs heavily in favor of broader expression and granting future creators the ability to produce their works with less fear from infringement claims. While the facts in this case may be a little extreme, considering especially the “fleeting” time in which the copyrighted work was displayed, the Court still produced some valuable and substantial comments regarding the proper balance between keeping the rights of copyright holders and providing adequate space for free expression.