Frederick E Bouchat v. Baltimore Ravens Limited Partnership, et al., MJG-08-397 (Nov. 21, 2008).
In the latest chapter of a decade-long dispute, the District Court of Maryland held on Friday that the Baltimore Ravens, the NFL, and NFL Films are not liable for damages stemming from their use of an infringing logo in public displays, films and memorabilia. The Court found that the defendants’ use of the logo was shielded by fair use.
The Plaintiff, Frederick E. Bouchat, is an amateur artist who drew pictures inspired by comic books. When Bouchat learned in 1995 that the Colts were moving to Baltimore he drew a series of logos for the incoming team. In April 1996, Bouchat faxed the Shield drawing (left) to the President of the Ravens along with a note stating: “If he would like this design if he does use it I would like a letter of recognition and if the team wants to I would like a adiograph[sic] helmet.” Through what the Court labels “a series of misunderstandings,” Bouchat’s drawing was sent to the Stadium Authority’s law office; then to the Ravens’ temporary headquarters; next to the NFL in New York; and finally to the commercial artists working on the project. According to the judgment, the Ravens and the NFL used the logo (right) under the belief that it was an original work.
Bouchat consulted counsel and registered his work shortly after he became aware of the infringing work. In May of 1997, Bouchat filed a copyright infringement action, Bouchat v. Baltimore Ravens, et al., MJG-97-1470. A jury found infringement, which was affirmed on appeal by the Fourth Circuit. In the damages phase of the trial Bouchat’s counsel sought actual damages and additional profits of the infringer. A jury found that there was no profit attributable to the infringement of Bouchat’s copyrighted work, also affirmed on appeal.
Bouchat was unable to seek statutory damages because the infringement of his work occurred prior to the registration of his copyright. See e.g. Mason v. Montgomery Data, Inc., 967 F.2d 135 (5th Cir. 1992) (“A plaintiff may not recover an award of statutory damages and attorney’s fees for infringements that commenced after registration if the same defendant commencd an infringement of the same work prior to registration.”)
Bouchat then filed actions against several hundred NFL licensees who sold merchandise bearing the infringing symbol, none of which resulted in damage awards. In this suit, Bouchat sought an injunction against the NFL and Baltimore Ravens from depicting the Flying B Logo in highlight films, action film clips, public displays of memorabilia, and photos. The Court held that the Defendant’s infringement was shielded from liability under fair use:
- Purpose and Character: The court found that the defendants’ use was historical and not, “except in the most tangential sense,” commercial. Supporting this finding, the Court included a funny ten-page history of logos used by the colts at the beginning of the opinion.
- Nature of the Work: Siding with the plaintiff, the Court found that the nature of the work was not the type that would be copied without express permission.
- Amount and Substantially: The Court found that although the logo was included in its entirety it wasn’t a major component of the entire work used, “[w]hether in a display of inaugural season tickets, a photo of a former player or . . . a Raven’s highlight film.”
- Potential Effect on the Market: The Court found that there is nothing to indicate that there is any present or foreseeable market for the Bouchat’s work.
Maryland IP Law has a nice discussion on a previous iteration of this dispute.
- Frederick E Bouchat v. Baltimore Ravens Limited Partnership, et al., MJG-08-397 (Nov. 21, 2008) (decision).