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The 4th U.S. Circuit Court of Appeals on Tuesday protected the National Football League and the Baltimore Ravens from an artist who had once convinced a judge that the team had infringed upon his design to create the Ravens’ old logo.
In handing down the ruling, the appeals court not only gave the NFL a victory, but allowed the Motion Picture Association of America to score a few points as well. The trade association (and the International Documentary Association) had submitted an amicus brief in the case and argued that “fair use” be recognized lest those who own copyrights to logos, signs, billboards and other copyrighted works interfere with the production and dissemination of expressive speech like movies.
Writing the opinion, 4th Circuit Judge James Wilkinson III agrees that appellant Frederick Bouchat goes too far in an attempt to enjoin the football league from using his logo in videos and photographs.
“Any other result would visit adverse consequences not only upon filmmaking but upon visual depictions of all sorts,” writes the judge.
As we previously covered, Bouchat has served up ample litigation over the years after he proposed a design for the Ravens franchise, which had relocated from Cleveland in 1996. The team later introduced their logo — it was called the “Flying B logo” and looked a lot like Bouchat’s — and used it for a few seasons before changing it. But Bouchat wasn’t credited, so he went to court, and got some mixed rulings. Yes, the team had infringed his work. But the judge initially said that the team’s profits weren’t attributable to the copyright infringement.
But that was only first down.
Bouchat has pressed on and on and on, and in the present dispute, he objected to use of the infringing logo in NFL Network documentaries, on NFL.com and in pictures in historical exhibits at the team’s stadium. An example of a use? The NFL Network’s Sound FX: Ray Lewis, which covered the retired linebacker’s long career, including his early days with the Ravens. Of course, back then, the team was using the Flying B logo.
The 4th Circuit opinion can be read here for Judge Wilkinson’s analysis of the four factors that comprise “fair use.” In short, the league’s use is transformative and insubstantial while Bouchat’s arguments for the commercial nature of the videos falls short.
On a broader note, Judge Wilkinson makes the important point that a case-by-case nature of a fair-use inquiry “offers the advantage of flexibility, but it also lacks predictability and clarity, which is often an impediment to free expression. As a result, fair use must give speakers some reasonable leeway at the margins.”
Filmmakers will be pleased with this passage from the ruling:
“Were we to require those wishing to produce films and documentaries to receive permission from copyright holders for fleeting factual uses of their works, we would allow those copyright holders to exert enormous influence over new depictions of historical subjects and events. Such a rule would encourage bargaining over the depiction of history by granting copyright holders substantial leverage over select historical facts. It would force those wishing to create videos and documentaries to receive approval and endorsement from their subjects, who could ‘simply choose to prohibit unflattering or disfavored depictions.’ Social commentary as well as historical narrative could be affected if, for example, companies facing unwelcome inquiries could ban all depiction of their logos. This would align incentives in exactly the wrong manner, diminishing accuracy and increasing transaction costs, all the while discouraging the creation of new expressive works. This regime, the logical outgrowth of Bouchat’s fair use position, would chill the very artistic creation that copyright law attempts to nurture.”
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