by Nancy Wolff, PACA Counsel
Bouchat v. Baltimore Ravens Ltd. P’ship, No. 12-2543, and Bouchat v. NFL Enterprises, No. 12-2548, Fourth Circuit Court of Appeals.
In the latest saga involving the use of the retro Baltimore Raven “Flying B” logo, the Fourth Circuit recently agreed that the incidental use of the team’s logo in NFL Network videos about the history of the Ravens franchise as well as part of a historical display at Ravens stadium was fair use and not copyright infringement. The defendants in this case received strong amici support from associations representing documentary and independent film makers and the MPAA. The court was clear that any other result would negatively impact filmmaking and all other visual depictions such as photographs.
The saga began in 1996, the Baltimore Ravens inaugural season, when Frank Bouchat noticed that the team “Flying B” logo was very similar to a logo he submitted for consideration. In 1997 Bouchat brought a lawsuit alleging that the Flying B logo constituted copyright infringement of three of his original drawings. The district court found that the Flying B logo infringed only one of Bouchat’s drawings and the Fourth Circuit affirmed the ruling. The Ravens changed their logo after the 1998 season, but over the years the Fourth Circuit issued three additional decisions in lawsuits brought by Bouchat over the use of the Flying B logo. The most relevant to the present case was the 2010 ruling where the court affirmed that use of the Flying B logo by the Ravens in season highlight videos and in a video shown at the stadium during home games did not constitute fair use but photographs in the corporate lobby did.
In the latest case Bouchat asserted that the NFL Networks use of the Flying B logo as it appears in three videos entitled “Top Ten: Draft Classes”, “Top Ten: Draft Busts” and “Sound FX: Ray Lewis” did not constitute fair use, as the uses were essentially the same as the season highlight video uses. The district court disagreed, ruling that in weighing the four fair use factors, the first fair use factor (purpose and character of the use) weighed heavily in favor of fair use as the use was transformative and the remaining factors were essentially neutral. The Fourth Circuit affirmed the lower court ruling, distinguishing the uses in the historical and documentary style videos from the season highlights by emphasizing that in the earlier case “the logo was shown again and again, always as brand identifier, for the Ravens organization and its players. . . . Here, however, because the videos used the historical footage to tell new stories and not simply to rehash the season, it used the Flying B logo for its “factual content” and was “transformative”. In addition, the court emphasized that the Flying B logo was only used fleetingly in the videos and downplayed the commercial nature of the use based on its finding that the use was transformative and did not serve as a market substitute for the original use.
Siding with the amici, the Court noted that creation was a cumulative process and those who come after will necessarily make some modest use of those who came before, and supported the use of archival footage in historical documentaries that are in keeping with the purpose of fair use. The court was concerned that any other result that would require filmmakers to receive permission from copyright holders for fleeting factual use would allow copyright holders to exert censorship over historical subjects. The court equated the use of the Flying B logo in the documentary to the use of the “Esso” sign and Edward Hopper’s famous Portrait of Orleans.
Bouchat also challenge the use of images of the Flying B logo in the clubhouse as part of an historical exhibit spanning over a 100 years of football history including a timeline, a highlight reel and a significant play exhibit. The Flying B logo played only an incidental role in these historical depictions. The court sided with the Ravens and found the use of the materials in the clubhouse transformative in function as they chronicled a significant aspect of Raven history. The court found the uses favored fair use in all respects as there was no commercial exploitation of the logo based on its expressive value.
The ruling strongly supports documentary filmmakers and other content creators who create works based on historical events and rely on fair use for the incidental use of copyrighted material depicted in archival footage to preserve historical accuracy. The court also made clear that the ruling did not support a fair use defense where the infringer exploits the protected work for profit based on the works expressive value. Because that was not present in this case, not only did the court find the use was a fair use but it was “fleeting, incidental, de minimis, innocuous.”
This ruling is consistent with the practice of not clearing logos and copyrighted works that are incidental in factual works licensed for editorial uses such as documentary films, historical exhibitions and books. If the elements are not exploited for their aesthetic qualities, there should be no infringement and no additional permissions should be necessary.