IP/Entertainment Law Weekly Case Update for Motion Picture Studios and Television Networks - November 29, 2012

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Table of Contents

Belair v. MGA Entertainment, Inc., USCA Second Circuit, November 20, 2012
 Click here for a copy of the full decision.

  • Second Circuit affirms summary judgment in favor of defendant on copyright infringement claim, finding no substantial similarity between the figures in plaintiff’s copyrighted photograph and defendant’s line of Bratz dolls.

Plaintiff, photographer Bernard Belair, brought suit against defendant MGA Entertainment, Inc., alleging that MGA’s Bratz line of dolls unlawfully infringed on a copyrighted image that he created for a Steve Madden shoe advertisement. The district court granted MGA’s motion for summary judgment, finding that no reasonable trier of fact could find that any of the Bratz dolls are substantially similar to the figures depicted in Belair’s copyrighted image. (Read our summary of the district court’s decision here.) Belair appealed and the Second Circuit affirmed, finding no substantial similarity between the subjects in plaintiff’s image – the “Devil” Girl and the “Angel” Girl – and the Bratz dolls.

At the outset, Belair argued that the district court improperly applied the more rigorous “discerning observer” test to reach its conclusion that no substantial similarity existed, and that the court should have used the more lenient “ordinary observer” test. The Second Circuit rejected his argument, finding that, under either test, no substantial similarity existed: “We need not conclusively decide which standard should apply because, even under the ordinary observer test, the record reveals no triable issue of fact as to substantial similarity… On our independent comparison of the figures depicted in Belair’s photograph and the Bratz dolls, we reach the same conclusion as the district court: the images do not convey a substantially similar aesthetic appeal.”

Noting that the subjects in Belair’s work shared certain characteristics with the Bratz dolls – exaggerated heads, eyes, lips, and small noses and waists – the court concluded that these “general similarities” are “outweighed and overshadowed by significant distinctions that contribute to the different aesthetic appeals of the Angel/Devil Girls photograph and the Bratz dolls.” For example, the court noted that while Belair’s photograph depicted two young women of opposite characters, one styled as a “Devil” and the other as an “Angel,” the Bratz dolls portray young women who share and are defined by a common characteristic: their “passion for fashion.” In addition, the court noted that the subjects did not wear the same type of clothing (beyond “chunky-heeled shoes” that were the fashion at the time), have different hair and makeup (only the “Devil” girl wears extensive makeup like the Bratz dolls, although darker and more “smoldering” rather than the colorful makeup of the dolls; in contrast, the “Angel” doll appears to wear no makeup), and have differing facial expressions (the facial expressions of the Angel/Devil girls show contrasting emotions of rebellion and innocence; the facial expressions of the Bratz dolls are “vacuous and inscrutable”).
 

Bouchat v. NFL Properties, LLC v. NFL Properties, LLC, Bouchat, USDC D. Maryland, November 19, 2012
 Click here for a copy of the full decision.

  • District court grants in part and denies in part defendants’ motion for summary judgment in case involving several uses of Baltimore Ravens’ former logo, finding use of former logo in stadium picture displays and film documentaries was substantially transformative and minimally commercial, while use of 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 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. 


For more information, please contact Jonathan Zavin at jzavin@loeb.com or at 212.407.4161.

Westlaw decisions are reprinted with permission of Thomson/West. If you wish to check the currency of these cases, you may do so using KeyCite on Westlaw by visiting http://www.westlaw.com/.

Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we inform you that any advice (including in any attachment) (1) was not written and is not intended to be used, and cannot be used, for the purpose of avoiding any federal tax penalty that may be imposed on the taxpayer, and (2) may not be used in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein.

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