Many video game creators go to great lengths to ensure that their games are highly realistic. Weapons, sound effects, uniforms, athletic abilities, locations, logos and other details are often copied from the real world and virtually re-created with great precision. Inevitably, some of those details may include copyrighted material. Should game creators be required to pay for copying that material? Or is such copying permissible as a noninfringing "fair use" under the U.S. Copyright Act? This question was addressed by a federal district court in Maryland in Bouchat v. National Football League Properties, LLC, No. 1:11-cv-02878, on November 19, 2012. In ruling on the defendants' summary judgment motion, the court determined that video game company EA Sports' use of the Baltimore Ravens' old logo in its "Madden NFL" game was not a fair use.
Back in 1995, plaintiff Frederick Bouchat created and copyrighted a drawing of a raven clutching a shield emblazoned with a capital letter "B." The newly formed NFL Baltimore Ravens team copied Bouchat's drawing and incorporated the "Flying B" into its primary logo displayed on the team's helmets during its first three seasons (1996-1998). Bouchat successfully sued both the NFL and the Ravens for copyright infringement—but the jury awarded no damages to Bouchat, finding that no part of the defendants' profits was attributable to the copyright infringement. The Ravens stopped using the infringing logo in 1998.
Over a decade later, video game publisher EA Sports reignited the controversy over Bouchat's drawing when it added a new feature to its popular Madden NFL series: "throwback" uniforms. In the 2010, 2011, and 2012 versions of Madden NFL, game players could dress their virtual teams in uniforms that had been historically used by those teams. Among the old uniform options that EA Sports faithfully re-created was the 1996 Baltimore Ravens' uniform, complete with the infringing Flying B logo. Bouchat, it seems, was not flattered and filed suit against both the NFL and EA Sports for copyright infringement. The defendants moved for summary judgment, arguing that their use of the logo was a protected fair use.
The court sided with Bouchat, holding that EA Sports' use of the logo in Madden NFL was not a fair use. The court analyzed and applied the four fair use factors listed in 17 U.S.C. § 107: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use on the potential market for the original work.
With regard to the first factor, the court found that the purpose and character of the use weighed in Bouchat's favor. EA Sports had used the logo in a nontransformative way, for a substantially commercial purpose. "[T]he Game," the court explained, "uses the Flying B Logo . . . to augment sales of its product by seeking to profit from the 'nostalgia value' gained from use of the infringing work in the very same manner as was the original use." Thus this factor indicated that EA Sports' exploitation of the infringing logo was not a fair use.
Similarly, the second and third factors also weighed against a finding of fair use, because Bouchat's drawing is a creative work warranting strong copyright protection, and because the entirety of Bouchat's drawing was used in the game.
Finally, the court pointed out, even though there might not be a market to license Bouchat's original shield drawing, there most certainly is a market to exploit the nostalgia value of NFL throwback uniforms and memorabilia, including items displaying the infringing Flying B logo derived from Bouchat's drawing. Anyone wishing to exploit the Flying B logo, therefore, needs the consent of both Bouchat and the NFL. Thus the court held: "The fourth . . . factor is, if not neutral, only slightly favoring a finding of fair use." Considering all four factors together, the court found that EA Sports' use of the Flying B logo in Madden NFL was not a fair use.
One lesson from this decision is that those who wish to capitalize on "nostalgia value" should first seek permission from those who actually helped create that value in the first place. Even when attempting to faithfully re-create historical details, it may behoove video game makers and other creators to do some research and confirm that all interested copyright holders have been consulted.
It remains to be seen whether EA Sports can successfully re-create yet another part of history: convincing another jury that even though Bouchat's drawing has been infringed, he is not entitled to any actual damages.