Fleeting Use of Work in Historic Display Is Fair Use – Bouchat v. Baltimore Ravens
In deciding the latest dispute in an ongoing battle over the Baltimore Ravens “Flying B” logo, the U.S. Court of Appeals for the Fourth Circuit upheld a finding of fair use in connection with the display of the logo in videos and historical displays. Bouchat v. Baltimore Ravens, Nos. 12-2543; -2548 (4th Cir., Dec. 17, 2013) (Wilkinson, J.; Duncan, J.; and Diaz, J.).
The 4th Circuit concluded that the fleeting use of the “Flying B” logo in three videos featured on the NFL Network and various websites constituted fair use because the works were transformative. For similar reasons, the 4th Circuit also concluded that incidental use of the logo in historical displays at the Baltimore Ravens’ stadium constituted fair use as transformative work.
The saga of the “Flying B” log began when the Ravens unveiled the log in June 1996 and the plaintiff-appellant Frederick Bouchat recognized it as strongly resembling one he had created and sent to the Ravens franchise months earlier. Bouchat filed a series of lawsuits against the Ravens and other entities using the logo beginning in 1997. The Ravens adopted a new logo after the 1998 season. In the most recent case prior to this litigation, the Ravens use of the logo in season highlight films was found to not be fair use, while use of the logo in images in the corporate lobby was found to be fair use.
The defendants-appellees, which include NFL Enterprises, NFL Network Services, NFL Productions, d/b/a NFL Films, (collectively the NFL), created videos that appeared on television and on NFL.com and other websites and that featured fleeting and infrequent footage of the Flying B logo. Defendant-appellee the Baltimore Ravens displayed pictures with the Flying B logo in historical exhibits at their stadium. Bouchat commenced suit to enjoin these activities. After the district court granted summary judgment concluded the uses complained of were subject to a fair use. Bouchat appealed.
Bouchat challenged the district court’s finding that the use of the Flying B logo in the videos and displays was transformative.
The 4th Circuit noted that each of the videos was created for film series that featured memorable players, coaches and events in NFL history. In two of the videos, the logo may be seen for less than one second. The majority of the videos feature interviews to depict historic events. A third video featured a collection of footage and audio of Ravens’ player Ray Lewis through his career. In that 24-minute video, the logo may be seen for about eight seconds.
The 4th Circuit found that these fleeting uses of the logo were transformative because, unlike the use of the season highlight films, the logo was not used to identify the Baltimore Ravens. Instead, the logo was used for historical context as part of an overall story of the NFL and its players. The commercial nature of the videos did not factor against the transformative nature. A key issue was whether the use of the logo itself provided commercial gain for the defendants. The 4th Circuit concluded it did not, noting the videos were not about the Baltimore Ravens, but were about historical NFL players and events. Similarly, the 4th Circuit found that the substantial transformative nature of the videos outweighed the remaining fair use factors, including the nature of the logo as a creative work, the complete use of the logo and the effect on the value of the logo.
Turning to the incidental use of the Flying B log in historical displays at the Ravens’ stadium, the 4th Circuit held that the use was fair use. The historical display included photographs, posters, highlight reels and exhibits spanning more than 100 years of Baltimore football history. The use of the Flying B logo played on an incidental role in a small fraction of the historical depictions. That made the use transformative, from an identifier of the Ravens from 1996-1998 to an historical descriptor to preserve a specific aspect of Ravens’ history. For similar reasons, the 4th Circuit also concluded that the commercial nature of the use and the remaining fair use factors did not detract from the transformative nature of the use.
Practice Note: The Fourth Circuit’s decision in this case highlights that it is difficult for copyright holders exert influence over depictions of historical subjects and events simply because a work contains fleeting use of a copyrighted article. The fair use doctrine protects such videos and documentaries from attack by subjects who may want to prohibit unflattering or disfavored depictions. As the Court noted, by allowing such fair use, artistic creation is nurtured and free speech is protected.