Academic journal article Harvard Journal of Law & Technology

Bouchat V. Bon-Ton Department Stores, Inc.: Claim Preclusion, Copyright Law, and Massive Infringements

Academic journal article Harvard Journal of Law & Technology

Bouchat V. Bon-Ton Department Stores, Inc.: Claim Preclusion, Copyright Law, and Massive Infringements

Article excerpt


   A. Bouchat I: Infringement Action Against the Ravens and NFLP
   B. Bouchat II: Bouchat's Damages Action Against the Ravens and NFLP
   C. Champion and Bon-ton: Bouchat's Claim Against the Licensees
   A. Champion's Application of the Virtual Representation Doctrine
   B. When Are Claims Under the Copyright Act Identical?


Frederick Bouchat, an amateur artist, was so excited that an NFL team was moving to Baltimore that he created drawings and designs for the team in his free time. (1) Initially willing to provide one of his drawings in exchange for only a "letter of recognition" and an autographed helmet, he later filed suit after discovering that the Baltimore Ravens and National Football League Properties ("NFLP") had used his drawing in their team logo without authorization or acknowledgement. (2) A jury returned a verdict of copyright infringement against the Ravens and NFLP, and the Fourth Circuit affirmed in an interlocutory appeal in Bouchat v. Baltimore Ravens, Inc. (Bouchat I). (3) In the damages phase of the trial, however, the jury found that none of the Ravens' or NFLP's profits were attributable to their infringing acts, and the Fourth Circuit affirmed in Bouchat v. Baltimore Ravens, Inc. (Bouchat II). (4)

While Bouchat's actions in Bouchat I were pending, he also filed a series of suits against the "downstream defendants," those manufacturers, retailers, and broadcast organizations who had received licenses from the NFLP to exploit the Ravens logo. (5) Bouchat and the downstream defendants both moved for partial summary judgment. (6) While Bouchat attempted to estop the downstream defendants from defending his infringement actions on the issue of liability, the downstream defendants tried to preclude Bouchat from collecting any damages from them. (7) The district court in Bouchat v. Champion Products, Inc. (Champion) (8) held that the downstream defendants were precluded from denying their infringement of Bouchat's copyright, but it also granted defendants' motions to preclude Bouchat from seeking any damages from them. (9) The court of appeals affirmed in Bouchat v. Bon-ton Department Stores, Inc. (Bon-ton). (10)

To reach this result, the Champion and Bon-ton courts were required to apply traditional rules of claim preclusion against a background of substantive copyright law. Claim preclusion requires (1) a final judgment on the merits, which neither party contested, (2) that the parties be identical or in privity, and (3) that the claims in the two actions be identical. (11) The Champion court held that NFLP had virtually represented the downstream defendants in the previous suits, thus satisfying the second requirement of privity. (12) Because neither party appealed this determination, the Bon-ton court reviewed only the district court's conclusions that the claims in the first suit were identical with the claims in the second. (13)

As a result, the Bon-ton court addressed several complications involved in applying the identity of claims standard in light of copyright law, including whether Bouchat's request for actual damages instead of profits should change the identity of claims analysis and whether the application of claim preclusion would defeat the traditional joint tortfeasor rule of copyright law. The court's analysis was problematic in light of the complex system of claims and liabilities regulated by copyright law. (14) This Note argues that future courts should exercise caution because of the unique factual circumstances of the Bouchat litigation; (15) courts should not erroneously rely on any precedent these cases may establish with respect to the virtual representation and claim preclusion doctrines in the copyright context. (16)

The Bouchat litigation conforms to a model of copyright litigation with which courts will increasingly have to grapple. …

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