Bouchat has been litigating against the Ravens and others
for a long time based on the Ravens’ infringement (established after a jury
trial) of his design for a Ravens logo.
The logo was in use only for the 1996-98 seasons, but ever since he’s
been litigating over uses of the logo in depictions of those teams.
The Fourth Circuit previously found that the use of the logo
in season highlight films and in a film played at the stadium wasn’t fair. See Bouchat v. Baltimore Ravens Ltd. P’ship,
619 F.3d 301 (4th Cir. 2010) (finding that footage of the Flying B logo in
season highlight films and in a short video shown on the large screen during
Ravens home games was not fair use, but that the Ravens’ display of the logo in
images in its corporate lobby was). The court of appeals is forced to
distinguish that result from its affirmance of fair use in different films, making for a
greater-than-usual emphasis on how case-by-case fair use must be. This creates
some tension with the court’s additional concluding section about how important
fair use is for First Amendment freedoms, and how courts therefore have to give
secondary users significant leeway, and its introductory statement that “[a]ny
other result would visit adverse consequences not only upon filmmaking but upon
visual depictions of all sorts.”
The court of appeals first affirmed the finding that
fleeting use of the logo in three videos shown on the NFL Network and various
websites, including Hulu, was fair use.
Two of the videos were part of the Top
Ten series, each of which features a countdown of ten notable people or
events in NFL history (of relevance here, one featured the Ravens’ 1996 draft
class as one of the ten best draft classes of all time, while another featured
a Ravens player as one of the ten most promising draftees who didn’t pan out). The third was part of the Sound FX series, providing viewers with
“an inside look at the sights and sounds of the NFL through players who wear
microphones.” Although the court spends
a lot of time on each film because of the case-by-case trap it’s entered, the
basics are this: each film offers a recounting and at least a minimal
interpretation of various historical events in the NFL, of which the Flying B
logo is a minimal part. In the 1996
draft class video, the logo is visible twice for less than a second, once on a
banner and a helmet at the opening of the segment, and again on the side of a
helmet, in what the court characterizes as “exceptionally brief” appearances. The relevant segment of the draft busts
program features a St. Louis Rams player; at the end of the segment, a Ravens
player tackles him and “it is possible to catch a glimpse of the Flying B logo
on the player’s helmet if one chances to look at it for the fraction of a
second it is visible.” (For what it’s
worth, as a non-fan I couldn’t figure out which second this was.) The third video has a two-minute segment on Ravens
linebacker Ray Lewis at training camp; during eight seconds, the Flying B logo
is visible on some players’ helmets, and twice in other segments the Flying B
logo is partially visible for less than a second when he makes a tackle.
[screenshot from Top Ten Draft Classes video]
Bouchat argued that the film clips here were materially
indistinguishable from the infringing highlight videos from the previous
round. The use of the Flying B logo was
nontransformative because it was “being used in the same way in these videos as
it was in the infringing videos in Bouchat
IV: to identify Ravens players.”
The court of appeals disagreed. Transformative works “rarely” violate
copyright rights because copyright’s goal of encouraging new works is generally
furthered by their creation.
Transformative works add something new to the original purpose of the copied
work. Here, each of the videos was
intended to “present a narrative about some aspect of Ravens or NFL history.” The draft classes video “recounts the Ravens’
1996 draft, documenting football’s return to Baltimore, the team’s strategy for
the 1996 draft, and the impressive result of its efforts.” The draft busts video “recounts the
disappointing path of Lawrence Phillips’s once promising career, complete with
interviews, game tape, and news footage.”
And the Sound FX video “provides an inside look at the career of Ray
Lewis through the sights and sounds that accompanied his play.” In each instance, the use of the logo
differed from its original purpose.
The logo “initially served as the brand symbol for the team,
its on-field identifier, and the principal thrust of its promotional efforts,”
but none of the videos used the logo to serve those same purposes. Instead, like the historical displays found
to be fair use in Bouchat IV, “these
videos used the Flying B as part of the historical record to tell stories of
past drafts, major events in Ravens history, and player careers.” (Citing Bill Graham Archives v. Dorling
Kindersley Ltd., 448 F.3d 605 (2d. Cir. 2006) (finding that Grateful Dead
posters served as “historical artifacts” that helped readers to understand biographical
text).) The logo was used not for its
expressive content, but for its factual content, and plainly added something
new. Physical transformation of the logo
was unnecessary.
Transformativeness was reinforced by the “exceptionally
insubstantial presence of the Flying B logo in these videos.” (One reason this decision is nothing much to
celebrate: it, like the recent Faulkner decision, has converted de minimis
use into just another fair use cluster, continuing the trend of packing
everything and the kitchen sink into fair use.)
The “vast majority” of its appearances were for only a fraction of a
second, and you’d have to be looking for it to see it. The extent of use can bear on
transformativeness. “The Flying B logo cannot be said to serve its original
function of identifying the Ravens players and organization if it is all but
imperceptible to those viewing the videos.”
Its function isn’t expressive but historical, “within videos that
construct new narratives about the history of the Ravens and the NFL.” The longest use is under ten seconds, but
that video is “replete with countless images of the Raven Profile logo,” which
now serves the former expressive purpose of the Flying B. Its incidental use was therefore transformative.
OK, you may ask (and Bouchat did), but how does this differ
from the infringing highlight reels from Bouchat
IV?
In reality … the uses are
strikingly different. In the season highlight films from Bouchat IV, the logo
was shown again and again, always as a brand identifier for the Ravens
organization and its players. As we found, the logo simply replicated its
original function when footage of the seasons was shot, condensed, and
reproduced in a summary film.
Thus, the season highlight videos “did not change the way in
which viewers experienced the logo, making the use non-transformative.” But
here, the videos used historical footage to “tell new stories and not simply
rehash the seasons.” That’s a
transformative use of the Flying B logo for its factual content. (Ugh.
I mean, better a fair use finding here than not, but I do not understand
why a straight-up historical summary of the season isn’t equally transformative
and factual, other than that the NFL isn’t allowed to do it; I would hope an
independent historian would get a different result. I see shades of the appalling interpretation
of transformativeness going on in publicity rights, discriminating against
visual realism even though the court tries to prevent that.)
The other “[e]qually important” distinction was that the
logo was “featured substantially, again and again, in the season highlight
films,” but “it was used only fleetingly and insignificantly here. Its function
as an identifier was significantly diminished, limiting its expressive value.”
Bouchat IV offered
two hypotheticals that the court here thought showed that it was right:
In finding that the season
highlight videos were not fair use, we laid out two different viewer
experiences: In the first, an individual at home in her living room in 1996
watches a Ravens football game on television. The Flying B logo on the helmets
of one team helps her identify the team as the Ravens. In the second, an individual
at home today (2010) in his living room watches the 1996 Ravens season
highlight film. The Flying B logo on the helmets of one team helps him identify
the team as the Ravens. The logo plays the same role in each example. Its
purpose is not transformed in the highlight film, viewed some fourteen years
later.
It turns out that “transformativeness” in purpose reduces to
the amount of time on screen: in the season highlight videos, the Flying B “still
served the purpose of identifying the team as the Ravens as they play opponents
-- its core and crucial function. But in the Top Ten and Sound FX videos, where
it is rarely visible for more than a second, it cannot possibly serve as a
meaningful identifier of the franchise.”
(Another way to understand the contortions of this opinion
is that the rejection of fair use in Bouchat
IV was based on a trademark theory of value—it is trademark, after all,
that protects identification function. I
cannot figure out how to distinguish “identification function” and “historical
identification function” as the court here seems to want to; I think that’s why
the court constantly returns to the brevity of the use.)
After transformativeness, all follows smoothly.
Commerciality is “largely insignificant” when there’s substantial
transformativeness. And the limited
nature of the use of the logo also meant that the commerciality of the overall
video wasn’t significant. “The key
inquiry is the extent to which the Flying B logo itself – and not the videos as
a whole – provides commercial gain to the NFL.”
Here the use was “incidental to the larger commercial enterprise of
creating historical videos for profit,” and the role of the logo in
facilitating profit was “unquestionably minimal.”
As to bad faith, Bouchat argued that prior findings of
infringement counted against defendants. But “good faith” isn’t listed in §107,
and “it is questionable whether allegations of subjective ‘bad faith’ could
undercut a use that objectively was fair.” Even assuming that they could, the
district court found that defendants had a good faith belief that they were
engaging in fair use, and the court of appeals saw no reason to disturb that factual
finding. Bouchat IV weighed past infringements against defendants because of
the lack of transformation. “Here,
because the use is transformative, any past infringement is simply inapposite.”
Nature of the work: the use wasn’t related to its expressive
content but to its historical facts, making factor two neutral. Factor three didn’t help Bouchat. “Here, the NFL had no choice but to film the
whole logo in order to fulfill its ‘legitimate transformative purpose’ of
creating the historical videos at issue…. It would be senseless to permit the
NFL to use the Flying B logo for factual, historical purposes, but permit it to
show only a half, or two-thirds of it.” Market
effect: transformative use makes market harm unlikely to occur. Given defendants’ decisive victory on factor
one, the other factors were “largely neutral.”
The court of appeals paused to justify its decision with
reference to “the underlying interests that inform copyright law and its
relationship to the First Amendment.”
The primary goal of copyright is to benefit the public, which means
balancing the rights of authors with the interest in the free flow of ideas. “[C]reation itself is a cumulative process;
those who come after will inevitably make some modest use of the good labors of
those who came before.” (Citing the MPAA’s
amicus brief, which I’m allowed to find amusing.)
Fair use, then, is crucial to the
exchange of opinions and ideas. It protects filmmakers and documentarians from
the inevitable chilling effects of allowing an artist too much control over the
dissemination of his or her work for historical purposes. Copyright law has the
potential to constrict speech, and fair use serves as a necessary “First
Amendment safeguard[]” against this danger.
What about the case-by-case nature of the fair use
inquiry? This can deter free
speech. “As a result, fair use must give
speakers some reasonable leeway at the margins.” (How this is to be squared with Bouchat IV is left as an exercise for
the reader.) The videos in suit “share
the qualities of other historical documentaries. They feature three key
components: archival footage, commentary, and interviews. These ingredients are
crucial to the creation of any historically accurate film.” They aligned the videos with the “criticism,
comment, news reporting, teaching . . . scholarship, or research” of §107’s
preamble.
Requiring permission for “fleeting factual uses” would give
copyright owners too much control over depictions of history. “Social
commentary as well as historical narrative could be affected if, for example,
companies facing unwelcome inquiries could ban all depiction of their logos.” (But if you have a documentary about
Coca-Cola, can you make more than “fleeting” uses?) The “logical outcome” of Bouchat’s position
would be lower accuracy, increased transaction costs, and fewer new expressive
works. “[J]ust as it would have been a terrible shame to prevent Edward Hopper
from painting the ‘Esso’ sign in his masterful Portrait of Orleans, so too
would it be a mistake to prevent the NFL from using the Flying B logo to create
new protected works.” Maybe the NFL is a less sympathetic defendant than
Hopper, but this case has implications far beyond its facts. “Society’s
interest in ensuring the creation of transformative works incidentally
utilizing copyrighted material is legitimate no matter who the defendant may
be.”
Given all this, the result of Bouchat’s claims against what
the court calls “the incidental use of the Flying B logo in certain historical
displays located on the ‘Club Level’ of the Baltimore Ravens’ stadium” is also foreordained. The Club Level is only accessible to people
who buy tickets priced between $175 and $355 per game. The displays at issue
were “a timeline, a highlight reel, and a significant plays exhibit” covering
over a hundred years of history, and the Flying B logo played an incidental
role in only a fraction of the historical events depicted.
Bouchat IV caused
some debate because of its reference to how the displays approved there were in
a “museum-like setting,” but that didn’t actually matter to whether the
displays here were transformative. “Collectively, the displays provide a
multi-faceted portrait of the evolution of professional football in Baltimore.
The Flying B logo is included merely as an incidental component of this broader
historical narrative,” rather than as a focal point of promotional efforts. It was also true that Bouchat IV relied heavily on the fact that the displays there were
open to the public free of charge, but the exclusivity of the Club Level wasn’t
dispositive. “The Club Level displays … produce what is essentially an
atmospheric effect. They are a negligible, fringe benefit of club membership.
The gourmet food, shelter from the elements, and view of the game – not some
miniscule aspect of the wall decor – provide the primary motivators for
purchasing a Club Level ticket.” In
particular, no one is paying hundreds of dollars to see the Flying B logo. “The mere use of a logo in a profit-making
venture … is quite different from its commercial exploitation.” Thus, both transformativeness and
commerciality cut “decidedly in favor of fair use.”
While the district court made no findings on a licensing
market for historical logos, “findings in Bouchat’s favor on this point would
be insufficient to overcome the substantial weight of the first three factors.” And without market data, the fourth factor
was neutral. (Compare Campbell, finding that it was defendant’s
burden to produce evidence, in the absence of which summary judgment was
inappropriate. The lower courts have
basically, and correctly on the merits, decided that the Supreme Court couldn’t
really have been serious about that.)
Finally, after reiterating its First Amendment concerns, the
court said that its decision “provides no support for a fair use defense where
the alleged infringer exploits a protected work for profit based on its
intrinsic expressive value.” But here,
the uses “were not only transformative, but also – take your pick – fleeting,
incidental, de minimis, innocuous.”
Protecting historical documentaries and displays, and their makers, required
this result.
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