Fourth Circuit Makes the Call on Fair Use

Once a jury finds that a defendant infringed a plaintiff’s copyrighted work, the defendant must stop using that work, right? The Fourth Circuit Court of Appeals recently addressed this issue in Bouchat v. Baltimore Ravens Limited Partnership.

The Pregame Show

Frederick Bouchat owns the copyright in a drawing he created in 1995 for use as the Baltimore Ravens football team’s logo (the “Shield”). Bouchat sent the Shield drawing to the Maryland Stadium Authority for possible use by the team, requesting only that he be given a letter of recognition and an autographed helmet if it were used.

The Shield drawing was then “mistakenly” used in the production of the Ravens’ “Flying B” logo during the team’s first seasons in 1996 through 1998. In an earlier decision in this ongoing dispute, the Fourth Circuit affirmed a jury’s verdict that the Ravens and the National Football League (NFL) had infringed Bouchat’s copyright with the Flying B logo.

Bouchat subsequently sought an injunction prohibiting all current uses of the Flying B logo and requiring destruction of all items with the logo, including several highlight films. The NFL sells Ravens highlight films for the team’s first three seasons, and the team plays a short highlight film from the 1996 season at home games.

The Flying B logo appears in the films, primarily on the helmets of the players. The Ravens and the NFL contended that these uses were allowed under the fair use defense.

De-fense, De-fense!

Fair use of a copyrighted work is a defense to copyright infringement. Section 107 of the Copyright Act establishes four factors that may be used to determine whether a particular use is fair. The Fourth Circuit analyzed the use of the logo in the highlight films according to these four factors:

The Purpose and Character of The Use, Including Whether Such Use Is of Commercial Nature or Is For Nonprofit Educational Purposes

The court noted that a new use of copyrighted material will qualify as fair use if it is “transformative,” or uses the work in a different manner or for a purpose different from the original.

But the use of the logo in the films serves the same purpose that it did when Bouchat’s logo was first infringed: to identify the player wearing it as a Raven. The court also found that the character of the use was “particularly indefensible” because the defendants are exploiting their original infringement to their commercial advantage. Thus, the first factor weighed against a finding of fair use.

The Nature of The Copyrighted Work

The court characterized Bouchat’s work as a creative drawing. As creative works are “closer to the core of works protected by the Copyright Act,” the court wrote, the second factor also weighed against a finding of fair use in the highlight films.

The Amount and Substantiality of The Portion Used in Relation to The Copyrighted Work As A Whole

Bouchat’s entire work is reproduced in the films and, unless the use is transformative, the use of the entirety of a copyrighted work will normally weigh against a finding of fair use. The court stressed that what matters is the amount of the copyrighted work used; that the logo isn’t a major component of the highlight films was irrelevant. The third factor, therefore, weighed against fair use.

The Effect of The Use Upon The Potential Market For, or Value Of, The Copyrighted Work

The court described this factor as the most important element of fair use. The factor considers both the harm caused by the actions of the alleged infringer and whether unrestricted and widespread conduct of that sort would have a substantially adverse effect on the potential market for the original work.

The court found that the NFL’s grant of licenses and other forms of permission for the use of the Flying B logo was evidence of a potential market for the copyrighted logo, and that the defendants had failed to submit any evidence showing a lack of a potential market. The fourth factor weighed against fair use, too.

The Final Score

After analyzing the fair use factors, the Fourth Circuit “easily” concluded that the use of the Flying B logo in the highlight films didn’t qualify as fair use. The films infringe Bouchat’s logo, so the case was sent back to the district court to determine whether an injunction is appropriate.

Sidebar: All Wasn’t Lost For The Ravens

Bouchat, the plaintiff in Bouchat v. Baltimore Ravens Football Club (see main article), also sought an injunction against the use of the Flying B logo in the lobby of the Ravens’ headquarters. The lobby includes a wall dedicated to Ravens history, with various items from its early years that feature the logo.

The court applied the four-factor analysis set forth in Section 107 of the Copyright Act to find that this use did constitute fair use. It held that the first and fourth factors favored fair use, while the second factor tilted slightly against fair use, and the third factor was neutral.

In particular, the Fourth Circuit found that the lobby was a free-of-charge “museum-like setting,” and the use of the logo in such a setting “adds something new” to the logo’s original purpose as a symbol identifying the Ravens. The season tickets and player photos bearing the logo are displayed to represent the inaugural season and the team’s first draft picks. Therefore, the logo was used for its factual, not expressive, content.

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