Nearly seventeen years after Frederick Bouchat first alleged that the NFL Baltimore Ravens’ 1996 inaugural season logo infringed his drawings, the Ravens, represented by Quinn Emanuel, have scored another appellate victory in this long-running copyright litigation. Last December, the United States Court of Appeals for the Fourth Circuit, affirming the district court, held that the NFL’s “fleeting and infrequent” use of the 1996 logo in videos broadcast on its network and online, as well as in displays and highlight reels at the Ravens’ stadium, was fair use. Bouchat v. Baltimore Ravens Ltd. P’Ship, 737 F.3d 932, 935-36 (4th Cir. 2013).
With a jury finding in 1998 that the Ravens’ “Flying B Logo” (“the logo”) infringed Bouchat’s drawing but awarding him no monetary damages, Bouchat has pursued a steady course of subsequent copyright claims over the years. Though the Ravens ceased using the logo two years after introducing it, the NFL and the Ravens have sometimes included it in depictions of the period during which the logo was in use. The latest dispute involved three videos produced by the NFL for viewing on the NFL Network and online. Id. at 937-38. Two of the videos feature a top-ten countdown of memorable NFL moments, while a third provides “viewers with an inside look at the sights and sounds of the NFL.” Id. at 938. Each video includes the logo incidentally; for example, in one video, it is “possible to catch a glimpse of [the logo] on the player’s helmet if one chances to look at it for the fraction of a second it is visible.” Id. Bouchat also brought claims regarding uses of the logo in displays and highlight reels throughout the club level of the Ravens’ stadium. Id. at 945. One display, a timeline of Ravens’ history, begins with the year 1881, and the logo is included in a “segment for a single year—1996,” on a reproduction of the game-day program and ticket. Id. at 945-46.
Emphasizing no fewer than ten times that these uses of the logo were “fleeting,” the court’s fair use analysis focused on the transformative nature of the use. Id. at 940. The videos presented “a narrative about some aspect of Ravens or NFL history,” and the use of the logo thus differed from its original purpose “as the brand symbol for the team, its on-field identifier, and the principal thrust of its promotional efforts.” Id. Rather, the videos used the logo “as part of the historical record to tell stories of past drafts, major events in Ravens history, and player careers.” Id. As such, the logo as used by the NFL served “no expressive function at all, but instead act[ed] simply as a historical guidepost.” Id. And while there was “no doubt” the videos were created for commercial gain,” that the use was “substantially transformative” meant that “the NFL’s profit-seeking weigh[ed] much less strongly against a finding of fair use.” Id. at 942. Similarly, the court reasoned that the stadium uses depict the logo “as a historical artifact,” an “incidental reproduction” that “would seem almost unavoidable” if “Baltimore’s football history [was] to be accurately depicted.” Id. at 948.
Although acknowledging that the “NFL may not arouse sympathies in the way that a revered artist does,” the court noted that “[s]ociety’s interest in ensuring the creation of transformative works incidentally utilizing copyrighted material is legitimate no matter who the defendant may be.” Id. at 945. The alternative outcome—that, to tell its story, the NFL Ravens might have to blur-out pieces of footage and thereby present an incomplete picture of its past—gave the court reason for pause. Id. at 943-46. The court reasoned that Bouchat’s position would “chill the very artistic creation that copyright law attempts to nurture” because, under that view of fair use, copyright owners “could ‘simply choose to prohibit unflattering or disfavored depictions.’” Id. at 944-45. The court’s decision has broad-reaching implications for filmmakers and documentarians of all stripes, who can rest assured that the insubstantial use of a copyrighted work for a reflective, historical purpose will be protected, and that they need not “receive permission from copyright holders for fleeting factual uses of their works.” Id. at 944.