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The Motion Picture Association of America is usually associated with its aggressive advocacy of expansive copyright laws. On Monday, however, the MPAA sided with the NFL and the Baltimore Ravens in defending limits to a copyright holder’s authority to object to use of protected material.
The dispute is a long-running one that involves an amateur artist named Frederick Bouchat who created a drawing that became the basis of the Ravens’ original logo. For many years, Bouchat has been pursuing multiple claims that the professional football league has infringed his work — and in November, a federal judge in Maryland practically screamed, “Never more!” finding that in many instances — from use of the logo in historical documentaries on the NFL Network to use of the logo on the NFL’s website — that such uses were protected by the “fair use” doctrine.
The ruling is now on appeal at the Fourth Circuit, and the MPAA is coming off of the sidelines to tell the judges about what horrors await in the fourth quarter should Bouchat’s theory on “fair use” become accepted.
First, some more background about Bouchat and his fight.
In 1996, he sent a design that he created as a logo for the Ravens franchise, which had relocated from Cleveland that same year. The drawings were sent to team management with the request that if used, he’d get a letter of recognition and an autographed helmet.
The Ravens announced their logo on June 5, 1996 — it was called the “Flying B logo” — and it looked a lot like Bouchat’s drawing:
Later, Bouchat sued for copyright infringement, and about a decade ago, it was determined that the NFL and the Ravens had infringed his copyright in the team’s first three seasons from 1996-1998 before team changed its logo.
However, Bouchat wasn’t able to attain any damages because the jury wasn’t convinced that the team’s profits were attributable to the copyright infringement.
Then, in 2008, Bouchat sued the NFL and the Baltimore Ravens again. This time, he objected to use of the old infringing logo in highlight films, on the stadium’s display of old players and memorabilia. Then, a few years after that, he sued yet another time over use of the logo in documentary videos, in pictures on the stadium wall and in the Madden NFL football game, which allows users to compete with throwback uniforms.
Last November, a federal judge declared most of the uses — including in NFL television series and documentaries such as one that featured the player draft — to be covered as “fair use.” The judge factored that the purpose and character of the use, the nature of the copyrighted work, the amount used in relation to the copyrighted work as a whole and the effect of the use upon the potential market for the copyrighted work. The only use that fell outside of fair use was the way in which Bouchat’s logo was incorporated into a video game.
“it is fair to conclude that the throwback uniform feature would not have been added to the Game without a determination by EA that there was commercial value (even if a small one) to the addition of a feature that included the use of the Flying B Logo,” wrote the judge in his opinion.
Still, Bouchat is upset that the judge tossed his claims over NFL documentaries and is looking to the Fourth Circuit for a second opinion. According to his appellate brief:
“Defendants are serial, recidivist infringers who continue to use Plaintiff’s copyrighted work without his permission, and have enlisted the courts to provide them refuge from the free market in the form of fair use… As previously adjudicated infringers of the copyrighted work in question, Defendants have invoked the equitable doctrine of fair use, but with unclean hands. Once again, masquerading as historians and museum curators despite previously being adjudicated as recidivist infringers, Defendants in these cases would have the Court grant them a perpetual license and sanitize their prior infringements. The fair use doctrine, however, is not a license for corporate theft.”
Bouchat believes that the defendants are precluded from raising the fair use defense, and further, asserts that “the videos here are merely sports entertainment, whether or not labeled as documentaries.”
Now, the MPAA is stepping in over what it sees as Bouchat’s “woefully cramped view of fair use.” The Hollywood trade association makes the case that free speech is at stake.
And it has a warning if the Fourth Circuit disagrees:
“The potential impact of Bouchat’s claims is not limited to the Baltimore Ravens or the NFL. Many historical subjects cannot be discussed effectively without the use of copyrighted material. It would be difficult, for example, to make an effective biography of an actor without including audiovisual clips depicting his work, in order, for example, to illustrate a point about his career and impact, or to create a comprehensive study of surrealist art without including works by Salvador Dali, to accompany the author’s commentary. It would be nearly impossible to document any sliver of life in a major American city without capturing vast numbers of logos, signs, billboards, and other copyrighted works along the way. It would be similarly impossible to make a documentary about the healthfulness of McDonald’s food (Super Size Me) or Wal-Mart’s business practices (Wal-Mart: The High Cost of Low Price) without depicting each company’s logo.”
Below is the MPAA’s full amicus brief authored by Julie Ahrens at Stanford Law School.
E-mail: firstname.lastname@example.org; Twitter: @eriqgardner
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