By W. Allan Edmiston
A federal judge in the District of Maryland has granted in part and denied in part defendants’ motion for summary judgment in a case involving several uses of the Baltimore Ravens’ former logo. Specifically, it found that use of the former logo in stadium picture displays and film documentaries was substantially transformative and minimally commercial, while use of the logo in a video game was both commercial and non-transformative.
Plaintiff Brandon Bouchat sued the NFL, Electronic Arts, and the Baltimore Ravens for copyright infringement for their respective uses of his copyrighted drawing, which had been incorporated in the Baltimore Ravens’ inaugural logo. In prior lawsuits, the Fourth Circuit found that while the Ravens infringed on Bouchat’s drawing in the logo, their use of the logo in other situations was non-infringing fair use under 17 U.S.C. § 107. In this suit, Bouchat sued the NFL for use of the logo in documentary videos, the Ravens for use of the logo in pictures on their stadium walls, and both the NFL and Electronic Arts for use of the logo in the Madden NFL video game. The defendants moved for summary judgment, asserting that their respective uses are non-infringing fair use. The district court agreed that all the uses but one — the use of the logo in the video game — constituted fair use.
Under 17 U.S.C. § 107, the court must consider four nonexclusive factors in determining whether a use is fair: (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 upon the potential market for or value of the copyrighted work.
Focusing on the purpose and character of use, the court considers whether the use is commercial or noncommercial, whether the purpose of the use falls within one of the categories of purposes mentioned in the preamble to section 107, whether the use is transformative, and whether the defendant acted in good or bad faith. The purpose and character of the Ravens’ use of the logo in historical pictures on their stadium walls favored a finding of fair use, according to the court, since the use was analogous to the fair use of copyrighted material in a museum. Acknowledging that the public must purchase tickets to games in order to see the photos, the court found that the photo displays are not part of any incentive for a patron to buy a game ticket. In addition, the photos display the logo for its factual content — for the fact that the logo was used in the Ravens’ inaugural seasons, a transformative use of the copyrighted work — and the Ravens used the logo in good faith.
Similarly, the court found the purpose and character of the NFL’s use of the logo in documentary films favored a finding of fair use, since the logo was used selectively and as necessary to portray the history of the team. Although the documentary films are commercial in nature, the NFL’s substantially transformative uses of the logos in the documentary films — adding commentary, criticism and documented historical facts to the use of the actual logo — substantially transformed the use. The court also found that the NFL used the logo in this instance in good faith.
In contrast, the use of the logo in the video game was entirely commercial in that Electronic Arts must have determined that including the throwback Ravens’ jerseys containing the inaugural logo had commercial value, according to the court, and, in fact, the addition of the logo alone added the desired nostalgia value to the game.
The court also concluded that, unlike the other uses, the use of the logo in the video game was virtually non-transformative — a distinction that significantly impacted the outcome of the analyses for each respective use. The court had previously held that the creative nature of Bouchat’s drawing mitigated against a finding of fair use copying; but because both the Ravens’ use in the photo display and the NFL’s use in documentaries was substantially transformative, the court found that this factor does not weigh against a fair use finding in this case. In contrast, because the use of the logo in the video game was not at all transformative, the court found that the creative nature of plaintiff’s drawing did weigh against a finding of fair use by the NFL and Electronic Arts.
Similarly, the court found that while all three uses incorporated the entire logo — and therefore the entire drawing — this factor was neutralized by the transformative use in the photos and films, but weighed against a finding of fair use in the case of the non-transformative use in the video game. The district court also determined that the transformative use of the logo in the photos and films neutralized the impact of the fourth factor (whether a use has any demonstrable effect upon the market for, or the value of, the copyrighted work), given the minimal commercial aspect of those uses. With respect to the NFL’s and Electronic Arts’ non-transformative use of the logo in the video game, however, the court found that though Bouchat has no ability, on his own, to license the logo, this does not weigh in favor of permitting fair use.
Bouchat v. NFL Properties, LLC, D. Md., CIVIL ACTION NO. MJG-11-2878, 11/19/12
W. Allan Edmiston, a partner at Loeb & Loeb LLP, is a business litigator and trial lawyer with wide-ranging and deep experience litigating complex commercial, financial and corporate matters, and in defending law firms and lawyers against lawsuits alleging legal malpractice, breach of fiduciary duty and conflicts of interest. He can be reached at aedmiston@loeb.com
