Intellectual Property – Team Logo in Film was ‘Fair Use’

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Bouchat v. Baltimore Ravens LP (Lawyers Weekly No. 001-002-14, 40 pp.) (Wilkinson, J.) No. 12-2543, Dec. 17, 2013; USDC at Baltimore, Md. (Garbis, J.) 4^th Cir.

Holding: A plaintiff who earlier won legal protection for his drawings of an image like the “Flying B” logo briefly used by the Baltimore Ravens pro football team loses his suit to enjoin the team’s use of the logo in three videos featured on its television network and various websites and as part of an exhibit in its stadium “Club Level” seating area; the 4^th Circuit upholds the district court decision that defendants’ use of the Flying B logo in both settings was “fair use.”

The four factors for “fair use” under 17 U.S.C. § 107 indicate the National Football League’s fleeting and insubstantial use of the Flying B logo in these videos qualifies as fair use. The first factor – the purpose and character of the use – rightfully the principal focus of the parties’ discussion, counsels strongly in favor of fair use. The remaining fair use factors are largely neutral, providing compelling arguments neither for nor against fair use. In the aggregate, the four factors point in favor of a fair use finding.

Were we to require those wishing to produce films and documentaries to receive permission from copyright holders for fleeting factual uses of their works, we would allow those copyright holders to exert enormous influence over new depictions of historical subjects and events. Such a rule would encourage bargaining over the depiction of history by granting copyright holders substantial leverage over select historical facts. Social commentary as well as historical narrative could be affected if, for example, companies facing unwelcome inquiries could ban all depiction of their logos. This would align incentives in exactly the wrong manner, diminishing accuracy and increasing transaction costs, all the while discouraging the creation of new expressive works. This regime, the logical outgrowth of appellant’s fair use position, would chill the very artistic creation that copyright law attempts to nurture.

We further conclude that the incidental use of the Flying B logo in certain historical displays on the “Club Level” of the stadium qualifies as fair use. These displays include a timeline, a highlight reel and a significant plays exhibit.

The criteria enumerated in § 107, in the aggregate, militate in favor of a finding of fair use. This conclusion is reinforced by broader expressive considerations similar to those articulated in our analysis of the challenged documentaries.

Our rejection of appellant’s challenge to the incidental uses of the Flying B logo provides no support for a fair use defense where the alleged infringer exploits a protected work for profit based on its intrinsic expressive value. That scenario is simply not presented on the facts before us.

The district court’s finding of fair use with respect to the documentary videos and the historical displays on the Club Level was a correct one.

Judgment for defendants affirmed.