In the latest chapter of a long-running dispute over the Baltimore Ravens’ old “Flying B” logo, the Fourth Circuit held that the NFL and Ravens’ use of the old logo in certain displays and videos was fair use, primarily because of the transformative manner in which the logo was used.
In 1995, after learning that Baltimore’s new NFL team would be called the Ravens, an amateur artist named Bouchat created a design for a team logo. See Bouchat v. Baltimore Ravens Ltd. P’ship, 619 F.3d 301 (4th Cir. 2010) (“Bouchat I”). He presented the logo to stadium officials, who passed it on to the Ravens franchise. A few months later, the Ravens unveiled their new “Flying B” logo, which resembled Bouchat’s submitted design.
Bouchat obtained a copyright registration for his design and successfully sued the Ravens for infringement, prompting the Ravens to adopt a new logo after the 1998 season. Even after the change, Bouchat continued to file additional copyright infringement claims challenging the use of the old logo in season highlight films, in a video shown at Ravens home games, and in the Ravens’ lobby. In 2010, the Fourth Circuit held that the use of the Flying B logo in the highlight films was infringing, but that the use of the logo in the lobby was protected as fair use. See Bouchat I, 619 F.3d at 317. The court explained that the highlight films’ use of the logo constituted infringement because the logo served the same purpose that it did when defendants first infringed Bouchat’s copyrighted design—identifying the football player wearing it with the Baltimore Ravens—while use of the logo in the lobby did not serve the same purpose because it was transformative and noncommercial.
The most recent chapter in the dispute began in 2012, when Bouchat filed two more suits claiming that the NFL had infringed his copyright by using the Flying B logo in three new videos and in certain historic displays located in the Ravens’ stadium. The district court granted summary judgment, finding that each use was fair use under 17 U.S.C. § 107, a decision that the Fourth Circuit upheld in January of this year.
The commercial nature of the NFL’s use of the Flying B was not as significant to the court’s decision “because the more transformative a new work, the less significant will be other factors, such as commercialism.”
Regarding the videos, the court analyzed the first fair use factor—“the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”—in two parts: (1) whether the videos were transformative and (2) the extent to which their use served a commercial purpose. The court explained that the three videos presented “a narrative about some aspect of Ravens or NFL history.” However, when the videos were originally filmed, the use of the Flying B “served as the brand symbol for the team.” Therefore, the use of the Flying B in the three videos was similar to the use of the Flying B in the Ravens’ lobby at issue in Bouchat I, “as part of the historical record to tell stories.” Furthermore, the court distinguished these videos, where the Flying B was used only “fleeting[ly],” from the season highlights at issue in Bouchat I, “where the logo was shown again and again, always as a brand identifier.” By contrast, the three videos were being used in a transformative way to tell new stories—about former draft classes and an inside look at the career of Pro Bowl linebacker Ray Lewis—as opposed to simply rehashing the season highlights, where the Flying B was used for its “core and crucial function,” to identify the team as the Ravens.
The commercial nature of the NFL’s use of the Flying B was not as significant to the court’s decision “because the more transformative a new work, the less significant will be other factors, such as commercialism.” Further, because the Flying B was sparingly used in the three videos, the commercial nature was not as important.
The court gave short shrift to the remaining fair use factors. The second factor—“the nature of the copyrighted work”—was “largely neutral” because, although the logo was “a creative work, the NFL’s transformative use lessens the importance of the . . . logo’s creativity.”
The court also gave “very little weight” to the third factor—“the amount and substantiality of the portion used”—because, although the logo was used “in its entirety . . . , [i]t would be senseless to permit the NFL to use the Flying B logo for factual, historical purposes, but permit it to show only a half, or two-thirds of it.” Finally, with respect to the fourth fair use factor—“the effect of the use upon the potential market for . . . the copyrighted work”—the court stated that because the Ravens’ “transient and fleeting use” of the logo was “for its factual, and not its expressive, content” and for “a different purpose” than the original use of the logo, the use did not have a large impact on the potential market for the work.
Allowing an artist to have total “control over the dissemination of his . . . work for historical purposes” or for social commentary, could potentially have “chilling effects.”
Next, the court turned to the Ravens’ use of the Flying B in the more expensive Club Level of its stadium as part of a timeline, in a highlight reel and in a significant-plays exhibit. The court explained that the logo was not being used for its original purpose, but, as with the three videos, it was being used to “preserve a specific aspect of Ravens history.” The commercial use aspect was also rejected because the displays had “an atmospheric effect” and were not motivating fans to purchase Club Level seats (which would be a commercial benefit for the Ravens). The court then discussed the remaining three factors and concluded that they did not undermine the finding of fair use.
The court further analyzed the underlying interests that inform copyright law. Allowing an artist to have total “control over the dissemination of his . . . work for historical purposes” or for social commentary, could potentially have “chilling effects” by giving a copyright holder the ability to “exert enormous influence over new depictions of historical subjects and events.” As Judge Wilkinson explained, “[j]ust as it would have been a terrible shame to prevent Edward Hopper from painting the ‘Esso’ sign in his masterful Portrait of Orleans, so too would it be a mistake to prevent the NFL from using the Flying B logo to create new protected works.”
While demonstrating the fact-intensive nature of the fair use analysis, this case also illustrates the difference between using a copyrighted work for its original purpose, as opposed to a transformative purpose. The combination of the limited use of the logo and the fact that the Flying B was not being used to identify the Ravens as the Ravens, but simply as an “historical guidepost,” swayed the court to hold that the Ravens and the NFL’s uses were protected as fair use.
The case is Bouchat v. Baltimore Ravens Ltd. P’ship, 737 F.3d 932 (4th Cir. 2013), as amended (Jan. 14, 2014).