“Any other result would visit adverse consequences not only upon filmmaking but upon visual depictions of all sorts,” wrote Circuit Judge J. Harvie Wilkinson III in his opinion, to which Judges Albert Diaz and Allyson K. Duncan joined.
The U.S. Court of Appeals for the Fourth Circuit issued the combined Bouchat v. Baltimore Ravens and Bouchat v. NFL Enterprises Tuesday, marking a victory for the defendants in a case that began sixteen years ago.
The year before, 1996, the Ravens unveiled a logo to accompany their inaugural season. Bouchat, the plaintiff, sued in 1997 claiming that logo bore a strong resemblance to the Flying B logo he created and previously provided to a member of the Ravens organization.
The current dispute centers around the use of the logo in a number of videos developed by the NFL and in a display located in the “Club Level” of the Ravens’ stadium. The NFL and Ravens both contend that their uses of the logo are protected under the doctrine of fair use.
Fair use represents a compromise between the rights of authors to control the uses of their works and the constitutional policy of promoting the progress of art through development of new creation and innovation.
Fair use can serve as a defense to copyright infringement and is codified at 17 U.S.C. §107. It consists of a weighing of four factors:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
With respect to the first factor, use of the logo both in the videos told “historical narratives about the players and franchise” and thus was transformative, Wilkinson wrote. Similarly transformative was the use of the logo in the stadium, where the displays were incidental, “purely descriptive,” and designed to preserve a part of history.
He also wrote that the minimal role of the logo in facilitating commercial gain did not outweigh the transformative natures.
Wilkinson wrote that the second factor was largely neutral in the case of the videos, as the transformative use “lessens the importance of the Flying B logo’s creativity.” As for the stadium display, depiction of the logo for its historical significance rather than its creativity proved to be of no assistance to Bouchat.
Little weight was given to the third factor, as inclusion of the whole logo was necessary to achieve the transformative purposes of the videos and stadium display, Wilkinson wrote.
Wilkinson similarly found in favor of fair use for the fourth factor, reasoning that the transformative uses were unlikely to supplant any market for the original.