By Anthony V. Lupo, Richard L. Brand and Amy E. Salomon, of Arent Fox LLP
Frederick E. Bouchat has once again alleged copyright infringement against the Baltimore Ravens and the National Football League (NFL) over the Ravens’ “Flying B Logo” from the mid-1990s.
In prior lawsuits, Bouchat claimed that the Ravens’ Flying B Logo infringed a logo that Bouchat designed and submitted to the team. While many of Bouchat’s claims were dismissed, a jury did find that the Ravens infringed the copyright in one of Bouchat’s drawings.
That decision led to a string of further lawsuits by Bouchat against the Ravens and the NFL concerning the use of the Flying B Logo. In the most recent lawsuit, Bouchat claimed that the Ravens and the NFL committed copyright infringement by using the Flying B Logo in historical films and in a historical display on the Club Level of the Ravens’ stadium. The lower court disagreed, finding the use of the Flying B Logo in this manner was permissible fair use under the Copyright Act, a decision recently upheld by the Fourth Circuit.
The Copyright Act provides sweeping rights to the creators of works of original expression that are fixed in a tangible medium. However, these rights are not limitless. The Copyright Act seeks to balance the interests of copyright owners against the interest of the public in free speech. This is accomplished through the so-called “fair use doctrine.” To analyze whether a use qualifies as a fair use, courts analyze the following factors: (1) the purpose and character of the use, including whether it is transformative and commercial in nature, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use on the potential market for the copyrighted work.
Fair use is a highly fact-specific analysis that must be made on a case-by-case basis. Here, after reviewing the four fair use factors, the Fourth Circuit ultimately found that the fleeting use of the Flying B Logo in historical films and a historical exhibit/display was permissible. First, and most importantly, the Court found the use was transformative because it did not serve the original function of identifying the Ravens’ brand/team. Instead, the NFL and the Ravens used the Flying B Logo to tell historical stories in the films and as a historical artifact in the stadium display. According to the Court, the transformative nature of the use was “reinforced by the exceptionally insubstantial presence of the Flying B Logo in the [films].” Notably, the logo appeared for under one second in most of the clips. Also, while the films were commercial in nature, the “‘substantially transformative’ nature of the use render[ed] its commercial nature largely insignificant.” Thus, the Court found the first factor strongly favored a finding of fair use.
The Court took less time analyzing the remaining three factors. As to the second factor, the Court noted that while creative works are entitled to a larger scope of protection, when a work is transformative it is less important that the underlying work is creative. Thus, the Court found that the second factor was neutral. Next, the Court found that the NFL and the Ravens had to display the Flying B Logo in its entirety to accomplish their objective. Thus, the third factor did not weigh against a finding of fair use. Finally, as to the fourth factor, the Court found that the use did not have a large impact on the potential market for the copyrighted work since it was being used for an entirely different purpose than it was originally used. Thus, weighing all four factors, the Court found that the use of the Flying B Logo in the historical films and display was permissible fair use.
A review of the prior lawsuits between these parties shows just how fact-specific the fair use analysis is. For example, the Fourth Circuit previously found that the use of the Flying B Logo in a season highlight film that merely “condensed and reproduced in a summary film” an earlier NFL season was not a fair use because the logo served the same purpose in that film as it did originally, namely to identify the Ravens’ team. In the case at bar, however, the historical films added additional commentary and a new story line, meaning the Flying B Logo served a new, transformative purpose. In reaching its conclusion in the current case, the Fourth Circuit also hinted that fair use must apply in order to encourage documentary and historical filmmakers to continue their efforts without fear of lawsuits from copyright owners whose works appear only fleetingly in the films.
