Bouchat v. Baltimore Ravens, Inc.

Citation241 F.3d 350
Decision Date03 March 2000
Docket NumberNo. 99-1617,PLAINTIFF-APPELLE,DEFENDANTS-APPELLANTS,V,99-1617
Parties(4th Cir. 2001) FREDERICK E. BOUCHAT,BALTIMORE RAVENS, INCORPORATED; NATIONAL FOOTBALL LEAGUE PROPERTIES, INCORPORATED, . Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Appeal from the United States District Court for the District of Maryland, at Baltimore.

Marvin J. Garbis, District Judge. (CA-97-1470-MJG) [Copyrighted Material Omitted] Counsel Argued: Robert Lloyd Raskopf, White & Case, L.L.P., New York, New York, for Appellants. Howard J. Schulman, Schulman & Kaufman, L.L.C., Baltimore, Maryland, for Appellee. ON Brief: John Paul Reiner, Marc E. Ackerman, White & Case, L.L.P., New York, New York; George Beall, Hogan & Hartson, L.L.P., Baltimore, Maryland, for Appellants. Robert J. Kasunic, Germantown, Maryland, for Appellee.

Before Widener and King, Circuit Judges, and James H. Michael, Jr., Senior United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Senior Judge MICHAEL wrote the opinion, in which Judge WIDENER joined. Judge King wrote a dissenting opinion.

OPINION

MICHAEL, Senior District Judge:

Frederick E. Bouchat (the "plaintiff-appellee") filed this action, seeking $10,000,000 in damages, in the United States District Court for the District of Maryland, alleging that the Baltimore Ravens, Inc. and National Football League Properties, Inc. (the"defendantsappellants") had infringed his copyright rights in three different drawings consisting entirely of his original work, including a shield drawing created by Bouchat in late 1995 when developing his "shield logo" for the new National Football League team-- the Baltimore Ravens. Bouchat holds a copyright on his shield drawing and claims that the defendants' designers copied protected elements of that drawing. The defendants claim that they developed the Baltimore Ravens' official shield logo independently. The case was tried before a jury over nearly five weeks in October and November 1998. The jury returned a verdict in favor of Bouchat. The defendants filed a motion for judgment as a matter of law notwithstanding the verdict or, in the alternative, for a new trial as to the third drawing, contending -among other things -- that the plaintiff failed to prove that the defendants had access to Bouchat's drawing. The district court, by order, denied defendants' motion in February of 1999. In April 1999, however, the District Court certified several questions to this court which form the basis of this interlocutory appeal. Based upon the reasoning below, this court affirms the decision of the district court.

I.

Frederick Bouchat is an amateur artist. He has a ninth grade education, and now works as a front entrance security guard at the State of Maryland Office building on St. Paul Street in Baltimore. Bouchat often showed his artwork to people passing through the building's main entrance.

As news of an NFL team for Baltimore spread in 1995, Bouchat created drawings and designs for the team based on his favorite possible team name -- the Ravens. Bouchat created a helmet design and affixed his creation to a miniature football helmet. Bouchat gave the design and helmet to Eugene Conti, a state official who worked in the St. Paul Street office building. Conti kept the helmet displayed in his office. Bouchat showed other team drawings to employees of the building, and gave two drawings away as holiday gifts in December of 1995.

Conti asked a colleague to arrange a meeting between Bouchat (an enthusiastic Baltimore fan) and John Moag, chairman of the Maryland Stadium Authority (the man who brought the team to Baltimore) in order to include a story about Bouchat in the employee news letter. On March 28, 1996, Bouchat was taken to meet Moag at Moag's law office on Pratt Street. The Ravens, and David Modell (the team's owner) occupied the same office suite in the Pratt Street building as a temporary space at this time.

At the meeting, photos were taken and Moag told Bouchat that the team was going to be named the Ravens. When Bouchat described his drawings, Moag told Bouchat to send his drawings along, and Moag would give them to the Ravens for consideration. The next day, Bouchat got permission from his supervisor to use the office fax machine in order to send his drawings to Moag at the Maryland Stadium Authority (MSA). Jan Drabeck, Bouchat's immediate supervisor, showed Bouchat how to use the fax machine.

On April 1 or 2, 1996, Bouchat faxed his drawings to the MSA. He received a fax confirmation but did not retain the printed confirmation receipt. One of the drawings Bouchat faxed to the MSA was his shield drawing.

On April 2, 1996, Modell met with the NFL Properties Design Director to discuss the development of a Ravens logo. Thereafter, Modell communicated with the design team concerning the logo project. The Ravens unveiled their new logo in June of 1996. The new Ravens logo was a Raven holding a shield.

Bouchat and several of his co-workers immediately recognized the new logo as Bouchat's work. Bouchat contacted a lawyer, and in August of 1996 he obtained copyright registration for his shield drawing. In May of 1997 Bouchat filed this lawsuit against the Ravens and NFL Properties for infringing his copyright on the design at issue. In November of 1998, the jury returned a verdict in favor of the plaintiff, but only as to his shield drawing.1 Defendants filed a motion for judgment as a matter of law which the district court denied. The district court then certified the following questions for interlocutory appeal: (1) Was the plaintiff's proof of a reasonable possibility of access legally insufficient? (2) If so, will the Fourth Circuit adopt the "strikingly similar" doctrine inferring access, as expressed in Gaste v. Kaiserman, 863 F.2d 1061, 1968 (2d Cir. 1988)? (3) Should the copyright infringement claim be dismissed because the plaintiff failed to note the derivative nature of the shield drawing on the application for copyright, where defendants have not proven fraud or a purposeful failure to advise the copyright office of facts that might have caused rejection of the application? (4) Did the court improperly coerce the jury to reach its verdict? These four questions are the basis for the defendants' interlocutory appeal.

II.

To prove copyright infringement, a plaintiff must show first that he owned the copyright to the work that was allegedly copied, and second, that the defendant copied protected elements of the work. See Towler v. Sayles, 76 F.3d 579, 581 (4th Cir. 1996) (citing Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361 (1991)). Where direct evidence of copying is lacking, plaintiff may prove copying by circumstantial evidence in the form of proof that the alleged infringer had access to the work and that the supposed copy is substantially similar to the author's original work. See Towler, 76 F.3d at 581-82.

Defendants contend that Bouchat did not establish access. To prove access, Bouchat was required to show that the NFL designers, the alleged infringers, had an opportunity to view Bouchat's drawing. See id. at 582. The jury was entitled to infer that the NFL designers had access if a third party intermediary (Modell) with a close relationship to the alleged infringers (the NFL designers) had access. See id. at 583. This court, however, has rejected mere "speculative reasoning" as a basis for proving access, especially when intermediaries are involved. Id. Reasoning that amounts to nothing more than a "tortuous chain of hypothetical transmittals" is insufficient to infer access. Id. at 583 (quoting Meta-Film Assoc., Inc. v. MCA, Inc., 586 F. Supp. 1346, 1355 (C.D. Cal. 1984)).

Defendants, in denying actual receipt of Bouchat's faxed drawings, claim that Bouchat's proof amounts only to a "tortuous chain of hypothetical transmittals" and therefore is legally insufficient to prove access. Defendants' argument is not persuasive. In Towler, the plaintiff relied on the theoretical possibility that agents to whom she had sent her screenplay "could have sent the work to" the alleged infringer. Id. There was no evidence that the agents had sent the work to the defendant, only the plaintiff's suggestion that such a transmittal was hypothetically possible. This, the Fourth Circuit concluded, was not adequate proof of access. See id.

Bouchat offered evidence that his shield drawing was transmitted first to Moag, who shared an office with Modell (who had a close relationship with the alleged infringers on the design project). Bouchat testified that Moag offered to forward his (Bouchat's) drawings to the Ravens and that Bouchat sent the fax of the drawings to MSA, addressed to Moag. The jury was entitled to credit that testimony. Evidence was also introduced that the regular practice at the MSA was to forward faxes for Moag to his Pratt Street office. The jury was thus entitled to conclude that the faxed drawing reached Moag at the Pratt Street office. Defendants admit that Modell and other Ravens staff shared office space with Moag in the Pratt Street building, and that Modell's own office was within"earshot" of Moag's office. By proving that the drawings were transmitted to Moag, and that Modell shared the same office space with Moag, Bouchat proved that Modell had "access" to Bouchat's drawing. The chain of transmittals is far more than hypothetical-- it is based on the testimony of Bouchat and the evidence regarding standard office routines at the MSA. See Fed. R. Evid. 406.

The defendants successfully argue that Bouchat did not prove that Modell actually saw Bouchat's drawings. However, Bouchat was not required to prove that Modell in fact saw the drawings and copied them. Rather, Bouchat was merely required to prove that...

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