Maryland Court Denies Electronic Arts' Fair Use Defense in Bouchat's Latest Copyright Infringement Case

           In Bouchat v. NFL et al., the U.S. District Court for the District of Maryland considered Defendants' respective motions for summary judgment based upon their copyright fair use defenses (17 U.S.C. Sec. 107).  In doing so, the Court granted Defendants NFL Enterprises LLC's and Baltimore Ravens L.P.'s motions, but denied Defendant Electronic Arts' (EA Arts) and NFL Properties LLC's motions.  On December 21, 2012, Judge Garbis referred the EA matter to Magistrate Judge Gesner for possible settlement/ADR resolution.

          In previous decisions involving Frederick E. Bouchat's "Flying B" artwork (depicted above), the District Court found the National Football League (NFL) and the Baltimore Ravens infringed Bouchat's copyright in the Flying B design by incorporating it in logos (see "Shield Logo" below) used by the Ravens and NFL during the 1996-1998 football seasons.  

          Later, the District Court found found the NFL and Ravens did not infringe by selling season highlight films, displaying film clips at the Raven's football stadium during games, and displaying photographs and memorabilia at the Raven's headquarters showing the Flying B logo, on the grounds that the sale and display of the Flying B logo in those materials was a fair use.  On appeal, the Fourth Circuit held that the sale and display of film clips at football games was not a fair use.

          In the present consolidated cases, the following uses of the Flying B logo were at issue:

          * Timeline displays at M&T Bank Stadium, the Raven's home stadium in downtown Baltimore, which included still photos of the Raven's original Shield logo;

          * Highlight reel display at M&T Bank Stadium, which included still photos;

          * Important plays display at M&T Bank Stadium, which included still photos;

          * Documentary videos sold to the public; and 

          * Madden NFL video game sold to the public.

          The Court considered the four, non-exclusive fair use factors (i.e., purpose and character, nature of the work, amount and substantiality, and effect on the market).

          With regard to the displays at M&T Bank Stadium and documentary videos, the Court found that those uses of the Flying B logo were non-infringing fair uses because they were "transformative."  With regard to the "Madden NFL" video games, however, the Court did not find a fair use, as discussed below.

          First, the Court found that the "Madden NFL-'10," "-'11," and "-'12" versions, made for XBox 360, PlayStation 3, and Wii consoles, allow game players to chose virtual players with Raven's uniforms from the 1996-1998 season, i.e., with the Flying B logo on the helmet and shirt.  

          Second, the Court found that the "purpose and character" of use factors strongly favor a finding of no fair use because the optional use of the Flying B logo in the video game was to augment sales by seeking to profit from the "nostalgia value" of retro uniforms.

          Third, the Court found that there was little, if any, transformation because the video game made virtually the same use of the Flying B log as the original use by the Ravens during the 1996-1998 seasons.  

          Fourth, the Court found that the nature of the work and amount and substantiality factors weighed against of finding of fair use.  The entirety of the copyrighted work was used in the video game.

          Fifth, with regard to the market factor, the Court found that Bouchat's inability, on his own, to license his copyrighted artwork is not a factor in favor of permitting fair use by others.


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