Academic journal article Sport Marketing Quarterly

The Fourth Circuit's Application of the Fair Use Doctrine in Bouchat V. Baltimore Ravens, Ltd. P'Ship

Academic journal article Sport Marketing Quarterly

The Fourth Circuit's Application of the Fair Use Doctrine in Bouchat V. Baltimore Ravens, Ltd. P'Ship

Article excerpt

Introduction

According to Fullerton (2010), licensing is a value adding process that provides sport organizations (both licensor and licensee) with significant revenue streams. For instance, the National Football League (NFL) is projected to earn $2.7 billion from the sales of logoed merchandise (Rovell, 2010). In order for sport organizations to maximize benefits as licensors and licensees, it is imperative that they develop and maintain a licensing plan for copyrighted marks and logos. A well-developed licensing plan would guide sport organizations in protecting the brand value of their own works and assist them in avoiding the possible misuse of works that are protected by other organizations or individuals. The Fourth Circuit's recent decision in Bouchat v. Baltimore Ravens, Ltd. P'Ship (2010) demonstrates the value of copyright protection and the potential pitfalls that await sport organizations and leagues that infringe on copyrighted works. The case also reinforces the need for a better understanding of the fair use doctrine in developing a licensing plan so that sport organizations can protect copyrighted marks and logos, and avoid infringing on another's protected work.

Overview of the Case

In September 2010, the United States Fourth Circuit Court of Appeals overturned, in part, a district court decision that dismissed a request by Federick E. Bouchat for injunctive relief to prohibit all current uses of the helmet logo (Flying B logo) used by the Baltimore Ravens for their first three football seasons (Bouchat v. Baltimore Ravens, Ltd. P'Ship, 2010). Bouchat, a security guard/amateur artist, originally brought suit more than 10 years ago against the Ravens for infringing on his copyright in the Flying B logo he designed and provided to the Ravens (Bouchat v. Baltimore Ravens, Inc., 2000). Despite the prior copyright infringement, the Ravens and the NFL continued to display the Flying B logo through the production and distribution of highlight films of the Ravens' first three seasons. Bouchat sought an injunction to prohibit the sale of all highlight films that included footage of the Ravens with the Flying B logo by the Ravens, the NFL, and other NFL franchises. The highlight films were produced by NFL films and were edited with narration, interviews, and a musical score. Bouchat also challenged the appearance of the Flying B logo in the lobby at the Ravens' headquarters where it was displayed in a collage that depicted the history of the franchise in Baltimore.

The Ravens and the NFL asserted the defense of fair use for the depictions of the Flying B logo in the films and at the lobby. "From the infancy of copyright protection" courts have recognized some opportunity for fair use of copyrighted materials (Campbell v. Acuff-Rose Music, Inc., 1994, p. 575). Congress codified fair use in § 107 of the Copyright Act to protect use of copyrighted material for the purposes of criticism, comment, news reporting, teaching, scholarship, and research. The following four statutory factors were included in § 107 to guide courts in applying the doctrine:

* 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 (17 U.S.C. § 107, 1988).

The four factors are illustrative rather than limiting and should be weighed together with the purpose of copyright in mind (Campbell v. Acuff-Rose Music, Inc., 1994, p. 575). Statutory fair use provides no bright-line test, but instead calls for case-by-case analysis (Harper & Row Publishers, Inc. v. National Enterprises, 1985).

Fair Use Applied to the Highlight Films

The Fourth Circuit applied the four factors to the highlight films and held that the NFL's use of Bouchat's copyright in the highlight films was not permitted under the fair use doctrine. …

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