December 2012: Sports Litigation Update

by Quinn Emanuel Urquhart & Sullivan, LLP
Contact

District Court Finds Appearance of Logo in Documentaries and Stadium Displays, but Not Video Games, to Be Fair Uses: A recent decision by Judge Marvin J. Garbis in the District Court of Maryland has provided further guidance as to when the use of an athletic team’s copyrighted logo may or may not be a fair use under the Copyright Act. Judge Garbis’s opinion confirms that the use of a team’s copyrighted logo for the purpose of offering commentary, criticism, or documentation of historical facts likely will be fair uses, while the use of a logo for its “nostalgia value” may not be sufficient.

When the Baltimore Ravens first moved to Baltimore in 1996, they adopted an inaugural logo (the “‘Flying B’ Logo”), used by the team for its 1996-1998 seasons. After the 1996 season completed, Frederick E. Bouchat filed a lawsuit alleging that the “Flying B” Logo infringed his own copyrighted drawing and seeking damages in the form of a percentage of profits of all merchandise sold bearing the logo. A jury found that the “Flying B” Logo infringed Bouchat’s drawing, but awarded Bouchat zero damages. In 2008, Bouchat filed another lawsuit, claiming that the NFL’s sales of Ravens highlight films from the 1996-1998 seasons (which necessarily included images of the “Flying B” Logo on the uniforms and the field) infringed his copyright. In a 2-1 decision, the Fourth Circuit found that the use of the logo in team highlight films was not a fair use because, in part, “[t]he simple act of filming the game in which the copyrighted work was displayed did not ‘add[] something new’ to the logo.” Bouchat v. Baltimore Ravens Ltd. P’ship, 619 F.3d 301, 309 (4th Cir. 2010) (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)). However, in the same decision, the Fourth Circuit unanimously concluded that the use of the logo in a photographic display in the headquarters of the Ravens’ corporate office was fair because, in part, “[t]hese depictions of the logo are consistent with the fair use display of copyrighted material in a museum,” which “‘adds something new’ to its original purpose as a symbol identifying the Ravens.” Id. at 314 (quoting Campbell, 510 U.S. at 579).

In 2011 and 2012, Bouchat filed three more lawsuits: (1) one against the Ravens organization for its display of historical photographic displays in M&T Stadium (the Ravens’ home stadium) that included the “Flying B” Logo; (2) one against various NFL entities for its use of the “Flying B” Logo in its NFL Network documentary series Top Ten and Sound FX; and (3) one against Electronic Arts for its use of the “Flying B” logo as one of many “throwback” uniform options in a series of Madden NFL video games. See Bouchat v. Baltimore Ravens Ltd. P’ship, 12-cv-1905 (D. Md.), Bouchat v. NFL Enterprises LLC, 12-cv-1495 (D. Md.); Bouchat v. NFL Properties LLC, 11-cv-2878 (D. Md.). The defendants in these three lawsuits filed motions for summary judgment, contending that all of the uses of the “Flying B” Logo at issue were fair uses under the Copyright Act, 17 U.S.C. § 107.

In an omnibus decision, Judge Garbis found that the use of the “Flying B” Logo in the Stadium photographs and in NFL Network programming were fair uses, while the use of the logo in EA’s Madden NFL games was not fair. See Bouchat v. NFL Enterprises LLC, 12-cv-1495, Doc. No. 33 (Decision Re: Fair Use Issues) (D. Md. Nov. 19, 2012). As to the Stadium historical displays, the Court found that the use of the “Flying B” Logo was transformative because, just as was the case with the display in the Ravens’ headquarters, it was used not for its expressive content, but rather for its factual content—i.e., “to represent the inaugural season and the team’s first draft picks.” Id. at 19 (quoting Bouchat, 619 F.3d at 314). As to the use of the “Flying B” Logo in the NFL Network documentaries, the Court determined that the logo was used “selectively as necessary to portray ‘history’ in biographical and comparative presentations,” and that the uses were “substantially transformative” because they “add[ed] something new by representing factual content, documenting and commenting on historical events, or functioning as a biography or career retrospective.” Id. at 25-26. The Court found that the transformative nature of the use of the logo in the Stadium displays and the documentaries offset any potential harm to the market for Bouchat’s drawing. Id. at 21, 27.

However, for the Madden NFL games, the Court found that the “Flying B” Logo was being used in the same manner as the Ravens used it in 1996-1998: as a symbol identifying the Ravens. Thus, according to the Court, the use of the logo in the games was not transformative. Further, the Court held that use of the “Flying B” Logo for “nostalgia value” did not render such a use transformative. Id. at 31. Finally, the Court noted that football teams play official games in throwback uniforms and that some NFL teams offer for sale replicas of throwback uniforms, evidencing the existence of a potential market to exploit the nostalgia value of past logos. Id. at 33-34. Weighing all four fair-use factors, the Court concluded that the use of the “Flying B” Logo in the Madden NFL games was not fair. Id. at 35.

While fair use is inherently a case-by-case inquiry, Judge Garbis’s decision demonstrates the centrality of the “transformative” inquiry in fair use determinations. If a work is used to communicate factual content or comment on historical events, it will likely be a transformative use and be adjudged a fair one. However, a work used only to communicate “nostalgia,” without anything more, may not be seen as a fair use. Nostalgic uses, like other uses, must add “something new” to the original in order to communicate a historical or other perspective, rather than simply evoke emotion already embedded in the copyrighted work, in order to be adjudged fair.

Quinn Emanuel represented defendants NFL Enterprises LLC, NFL Network Services, Inc. & NFL Productions LLC d/b/a NFL Films in Bouchat v. NFL Enterprises LLC, MJG-12-1495 (D. Md.); Baltimore Ravens Limited Partnership in Bouchat v. Baltimore Ravens Limited Partnership, MJG-12-1905 (D. Md.); and NFL Properties LLC in Bouchat v. NFL Properties LLC, 11-cv-2878 (D. Md.).

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.

© Quinn Emanuel Urquhart & Sullivan, LLP | Attorney Advertising

Written by:

Quinn Emanuel Urquhart & Sullivan, LLP
Contact
more
less

Quinn Emanuel Urquhart & Sullivan, 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):
hide

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.

Security

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 info@jdsupra.com. 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: info@jdsupra.com.

- 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.