Court Tackles Copyright Issue of "Throwback" NFL Uniforms in Video Games

by Manatt, Phelps & Phillips, LLP

[author: Seth Reagan]

Many video game creators go to great lengths to ensure that their games are highly realistic. Weapons, sound effects, uniforms, athletic abilities, locations, logos and other details are often copied from the real world and virtually re-created with great precision. Inevitably, some of those details may include copyrighted material. Should game creators be required to pay for copying that material? Or is such copying permissible as a noninfringing "fair use" under the U.S. Copyright Act? This question was addressed by a federal district court in Maryland in Bouchat v. National Football League Properties, LLC, No. 1:11-cv-02878, on November 19, 2012. In ruling on the defendants' summary judgment motion, the court determined that video game company EA Sports' use of the Baltimore Ravens' old logo in its "Madden NFL" game was not a fair use.

Back in 1995, plaintiff Frederick Bouchat created and copyrighted a drawing of a raven clutching a shield emblazoned with a capital letter "B." The newly formed NFL Baltimore Ravens team copied Bouchat's drawing and incorporated the "Flying B" into its primary logo displayed on the team's helmets during its first three seasons (1996-1998). Bouchat successfully sued both the NFL and the Ravens for copyright infringementbut the jury awarded no damages to Bouchat, finding that no part of the defendants' profits was attributable to the copyright infringement. The Ravens stopped using the infringing logo in 1998.

Over a decade later, video game publisher EA Sports reignited the controversy over Bouchat's drawing when it added a new feature to its popular Madden NFL series: "throwback" uniforms. In the 2010, 2011, and 2012 versions of Madden NFL, game players could dress their virtual teams in uniforms that had been historically used by those teams. Among the old uniform options that EA Sports faithfully re-created was the 1996 Baltimore Ravens uniform, complete with the infringing Flying B logo. Bouchat, it seems, was not flattered and filed suit against both the NFL and EA Sports for copyright infringement. The defendants moved for summary judgment, arguing that their use of the logo was a protected fair use.

The court sided with Bouchat, holding that EA Sports' use of the logo in Madden NFL was not a fair use. The court analyzed and applied the four fair use factors listed in 17 U.S.C. § 107: (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 on the potential market for the original work.

With regard to the first factor, the court found that the purpose and character of the use weighed in Bouchat's favor. EA Sports had used the logo in a nontransformative way, for a substantially commercial purpose. "[T]he Game," the court explained, "uses the Flying B Logo . . . to augment sales of its product by seeking to profit from the 'nostalgia value' gained from use of the infringing work in the very same manner as was the original use." Thus this factor indicated that EA Sports' exploitation of the infringing logo was not a fair use.

Similarly, the second and third factors also weighed against a finding of fair use, because Bouchat's drawing is a creative work warranting strong copyright protection, and because the entirety of Bouchat's drawing was used in the game.

Finally, the court pointed out, even though there might not be a market to license Bouchat's original shield drawing, there most certainly is a market to exploit the nostalgia value of NFL throwback uniforms and memorabilia, including items displaying the infringing Flying B logo derived from Bouchat's drawing. Anyone wishing to exploit the Flying B logo, therefore, needs the consent of both Bouchat and the NFL. Thus the court held: "The fourth . . . factor is, if not neutral, only slightly favoring a finding of fair use." Considering all four factors together, the court found that EA Sports' use of the Flying B logo in Madden NFL was not a fair use.

One lesson from this decision is that those who wish to capitalize on "nostalgia value" should first seek permission from those who actually helped create that value in the first place. Even when attempting to faithfully re-create historical details, it may behoove video game makers and other creators to do some research and confirm that all interested copyright holders have been consulted.

Although EA Sports' efforts to faithfully re-create a part of NFL history may have increased the appeal of its games among consumers, this time, at least, those efforts backfired against EA Sports in the courtroom. It remains to be seen whether EA Sports can successfully re-create yet another part of history: convincing another jury that even though Bouchat's drawing has been infringed, he is not entitled to any actual damages.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Manatt, Phelps & Phillips, LLP | Attorney Advertising

Written by:

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.