The U.S. Court of Appeals for the Fourth Circuit, reversing the district court, found that the NFL’s Baltimore Ravens’ unauthorized use of its previously adjudicated infringing logo design in highlight film was not a fair use. Bouchat v. Baltimore Ravens Limited Partnership, Case No. 08-2381 (4th Cir., Sept. 2, 2010) (Michael, J).
Frederick Bouchat is the owner of a copyright in a "Flying B Logo" drawing that he created in 1995 and proposed for use as the Ravens’ team logo. In its first three seasons—1996, 1997, and 1998—the team used a "strikingly similar" logo design on its football helmets, on its field, and on tickets, flags, hats and other promotional materials. Bouchat filed a lawsuit alleging copyright infringement, which ultimately resulted in a jury verdict finding the Baltimore Ravens liable for infringement; a Fourth Circuit decision affirmed the jury verdict. A second decision by the 4th Circuit affirmed a jury award of zero damages. A third lawsuit brought by Bouchat sought damages from NFL licensees who used the Flying B logo. The 4th Circuit ruled in favor of the licensees, finding that Bouchat was "precluded from obtaining actual damages from them."
Now, in his fourth lawsuit, Bouchat sought an injunction prohibiting all current uses of his logo design, including in highlight film footage of the team from the 1996, 1997 and 1998 seasons, and photographs featuring the early logo in the Ravens’ corporate lobby, where team history is displayed. Bouchat further sought the destruction of all items exhibiting the Flying B logo. The district court determined that defendants’ depictions of the Flying B logo from its 1996, 1997 and 1998 seasons constituted fair use, and entered judgment in favor of the Ravens. Bouchat appealed, arguing that the Ravens had failed to successfully plead the fair use defense.
In reversing the district court, the 4th Circuit noted the four factors listed in § 107 of the Copyright Act for determining whether a defendant’s use of copyrighted material constitutes a fair use: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.
Analyzing the first factor, the 4th Circuit noted that the sale of highlight films is solely for a commercial purpose and does not align with the aim of the fair use defense, to protect uses of copyrighted material for news reporting, comment, research and other not-for-profit ends. The court rejected the district court’s reasoning that use of the logo in highlight films was "historical" in nature, noting that merely labeling a use "historical" does not make it fair use. The 4th Circuit also concluded that no "transformative" purpose existed behind the depiction of the Flying B logo in the highlight films, meaning that the logo served the same purpose in these films as it did on Ravens’ players’ helmets, on tickets or on the field. As for the second factor, Judge Michael agreed with the district court that the "creative nature" of the work mitigated against a finding of fair use. For the third factor, "amount and substantiality of the portion used in relation to the copyrighted work as a whole," the court noted that the entire logo had been misappropriated by the Ravens, a fact that weighed against a finding of fair use. For the fourth factor ("undoubtedly the single most important element of fair use") the 4th Circuit found that if, as in this case, commercial use amounts to a mere duplication of an original in its entirety, it is more likely that market harm to the original will occur. In light of the four-factor test, the 4th Circuit reversed the district court finding of fair use for use of the Flying B logo in highlight film footage.
Turning to use of the logo in the Ravens’ corporate headquarters, the court contrasted the use of the logo in this "museum-like setting" to the commercial use of the logo in the highlight film, ruling that the use of the logo in this setting undercut the factors that weighed against a finding of fair use in the highlight film context; namely, "the amount and substantiality of the portion used" and "the effect of the use on the potential market for or value of the copyrighted work." The court thus affirmed the district court’s finding of fair use of the Flying B logo on items displayed in the Ravens’ corporate lobby.