A recent decision by Judge Marvin J. Garbis in the District Court of Maryland has provided further guidance as to when the use of an athletic team’s copyrighted logo may or may not be a fair use under the Copyright Act. Judge Garbis’s opinion confirms that the use of a team’s copyrighted logo for the purpose of offering commentary, criticism, or documentation of historical facts likely will be fair uses, while the use of a logo for its “nostalgia value” may not be sufficient.
When the Baltimore Ravens first moved to Baltimore in 1996, they adopted an inaugural logo (the “‘Flying B’ Logo”), used by the team for its 1996-1998 seasons. After the 1996 season completed, Frederick E. Bouchat filed a lawsuit alleging that the “Flying B” Logo infringed his own copyrighted drawing and seeking damages in the form of a percentage of profits of all merchandise sold bearing the logo. A jury found that the “Flying B” Logo infringed Bouchat’s drawing, but awarded Bouchat zero damages. In 2008, Bouchat filed another lawsuit, claiming that the NFL’s sales of Ravens highlight films from the 1996-1998 seasons (which necessarily included images of the “Flying B” Logo on the uniforms and the field) infringed his copyright. In a 2-1 decision, the Fourth Circuit found that the use of the logo in team highlight films was not a fair use because, in part, “[t]he simple act of filming the game in which the copyrighted work was displayed did not ‘add something new’ to the logo.” Bouchat v. Baltimore Ravens Ltd. P’ship, 619 F.3d 301, 309 (4th Cir. 2010) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)). However, in the same decision, the Fourth Circuit unanimously concluded that the use of the logo in a photographic display in the headquarters of the Ravens’ corporate office was fair because, in part, “[t]hese depictions of the logo are consistent with the fair use display of copyrighted material in a museum,” which “‘adds something new’ to its original purpose as a symbol identifying the Ravens.” Id. at 314 (quoting Campbell, 510 U.S. at 579).
In 2011 and 2012, Bouchat filed three more lawsuits: (1) one against the Ravens organization for its display of historical photographic displays in M&T Stadium (the Ravens’ home stadium) that included the “Flying B” Logo; (2) one against various NFL entities for its use of the “Flying B” Logo in its NFL Network documentary series Top Ten and Sound FX; and (3)
one against Electronic Arts for its use of the “Flying B” logo as one of many “throwback” uniform options in a series of Madden NFL video games. See Bouchat v. Baltimore Ravens Ltd. P’ship, 12-cv-1905 (D. Md.), Bouchat v. NFL Enterprises LLC, 12-cv-1495 (D. Md.); Bouchat v. NFL Properties LLC, 11-cv-2878 (D. Md.). The defendants in these three lawsuits filed motions for summary judgment, contending that all of the uses of the “Flying B” Logo at issue were fair uses under the Copyright Act, 17 U.S.C. § 107.
In an omnibus decision, Judge Garbis found that the use of the “Flying B” Logo in the Stadium photographs and in NFL Network programming were fair uses, while the use of the logo in EA’s Madden NFL games was not fair. See Bouchat v. NFL Enterprises LLC, 12-cv-1495, Doc. No. 33 (Decision Re: Fair Use Issues) (D. Md. Nov. 19, 2012). As to the Stadium historical displays, the Court found that the use of the “Flying B” Logo was transformative because, just as was the case with the display in the Ravens’ headquarters, it was used not for its expressive content, but rather for its factual content—i.e., “to represent the inaugural season and the team’s first draft picks.” Id. at 19 (quoting Bouchat, 619 F.3d at 314). As to the use of the “Flying B” Logo in the NFL Network documentaries, the Court determined that the logo was used “selectively as necessary to portray ‘history’ in biographical and comparative presentations,” and that the uses were “substantially transformative” because they “add[ed] something new by representing factual content, documenting and commenting on historical events, or functioning as a biography or career retrospective.” Id. at 25-26. The Court found that the transformative nature of the use of the logo in the Stadium displays and the documentaries offset any potential harm to the market for Bouchat’s drawing. Id. at 21, 27.
However, for the Madden NFL games, the Court found that the “Flying B” Logo was being used in the same manner as the Ravens used it in 1996-1998: as a symbol identifying the Ravens. Thus, according to the Court, the use of the logo in the games was not transformative. Further, the Court held that use of the “Flying B” Logo for “nostalgia value” did not render such a use transformative. Id. at 31. Finally, the Court noted that football teams play official games in throwback uniforms and that some NFL teams offer for sale replicas of throwback uniforms, evidencing the existence of a potential market to exploit the nostalgia value of past logos. Id. at 33-34. Weighing all four fair-use factors, the Court concluded that the use of the “Flying B” Logo in the Madden NFL games was not fair. Id. at 35.
While fair use is inherently a case-by-case inquiry, Judge Garbis’s decision demonstrates the centrality of the “transformative” inquiry in fair use determinations. If a work is used to communicate factual content or comment on historical events, it will likely be a transformative use and be adjudged a fair one. However, a work used only to communicate “nostalgia,” without anything more, may not be seen as a fair use. Nostalgic uses, like other uses, must add “something new” to the original in order to communicate a historical or other perspective, rather than simply evoke emotion already embedded in the copyrighted work, in order to be adjudged fair.