Summary: Seeking only minimal recognition for his Baltimore Ravens logo design, Baltimore amateur artist ends up seeking certiori from the Supreme Court in his copyright infringement case, winds up with no damages award
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So how much is an NFL franchise team logo worth? Just ask Frederick Bouchat, who sued the Baltimore Ravens and the National Football League Properties (NFLP) over their use and licensing of a logo that closely resembled a drawing Bouchat faxed the Ravens back in 1995. All Bouchat asked in return was a letter of recognition and an autographed helmet, a small reward from a team and League making millions in revenues at the time.
After a lengthy bifurcated copyright infringement trial, the District Court for the District of Maryland found that the Ravens had infringed Bouchat's copyrighted work. The Court of Appeals for the Fourth Circuit affirmed the trial court decision. His damage award, however, was zero (and he's still waiting for his recognition letter and autographed helmet). Bouchat then sued the NFL's licensees, and won again. However, he was not so lucky when it came to seeking damages.
Under 17 U.S.C. § 504(a)(1), a copyright owner may seek actual damages plus any additional profits of the infringer. Under 17 U.S.C. § 504(c)(1), an award of statutory damages may be made "in a sum of not less than $750 or more than $30,000."
In this case, Bouchat had little actual damages (he was not making any products using the logo himself), so he sought profits from the Ravens and dozens of NFLP licensees who were selling myriad items containing the "Flying B" logo. The jury found that defendants' income from products containing the Flying B were attributed completely to factors other than the artwork itself, and therefore did not award Bouchat any damages. Moreover, Bouchat was not entitled to an award of statutory damages because he had not registered his copyrighted work before the Ravens' and licensees' infringing conduct began:
"Once NFLP designed and licensed the Flying B logo that infringed Bouchat's copyright, the liability of all of NFLP's licensees became a foregone conclusion. Thus, we hold that a copyright owner may not obtain statutory damages from a licensee liable jointly and severally with a licensor when the licensor's first infringing act occurred before registration and was part of the same line of related infringements that included the licensee's offending act."
Comments:
- Something tells me that the recognition letter and helmet Bouchat requested were viewed by Ravens' lawyers as evidence or an admission of sorts that the Ravens were infringing. Would that "payment" have been later viewed as forming an implied license to use the logo? Would Bouchat have sued anyway after receiving the thank you letter? No one can tell for sure, but it shows how damages-wary lawyers think about actions their clients make, even the smallest of gestures
- The Copyright Act provides that no award of statutory damages shall be made for any infringement of copyright in an unpublished work commenced before the effective data of its registration. Lesson learned: even if you're an amateur artist, don't forget to register your work with the Copyright Office (electronic registration costs are minimal) in order to seek statutory damages; you just never know when and where your work will wind up being used
- NFLP's use of the logo generated over $2.6 million in gross revenues from June 1996 through March 31, 1999 (after that date, the logo was no longer used)
- Cites: Bouchart v. Baltimore Ravens, Inc., 228 F.3d 489 (4th Cir. 2000), cert. denied, 532 U.S. 1038 (2001) (Bouchart I); Bouchat v. K-Mart Corporation, No. 01 Civ.1996-1-MJG (4th Cir. Oct. 17, 2007)
- Howard Schulman, of Shulman & Kaufman, LLC, Baltimore, MD, argued for Appellant Bouchart. Defendants-Appellees were represented by White & Case and Hogan & Hartson LLP of Baltimore, MD
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