346 F.3d 514 (4th Cir. 2003), 02-1999, Bouchat v. Baltimore Ravens Football Club, Inc.

• Citation: 346 F.3d 514
• Party Name: Bouchat v. Baltimore Ravens Football Club, Inc.
• Case Date: October 08, 2003
• Court: United States Courts of Appeals, U.S. Court of Appeals — Fourth Circuit

Page 514

346 F.3d 514 (4th Cir. 2003)

68 U.S.P.Q.2d 1494

Frederick E. BOUCHAT, Plaintiff-Appellant,

v.

BALTIMORE RAVENS FOOTBALL CLUB, INCORPORATED, a/k/a Baltimore Ravens, Incorporated; National Football League Properties, Incorporated, Defendants-Appellees.

v.

Jonathan Morgan, Movant.

No. 02-1999.

United States Court of Appeals, Fourth Circuit

October 8, 2003

Argued: June 4, 2003.

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[Copyrighted Material Omitted]

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ARGUED:

Howard J. Schulman, Schulman & Kaufman, L.L.C., Baltimore, Maryland, for Appellant.

Robert Lloyd Raskopf, White & Case, L.L.P., New York, New York, for Appellees.

ON BRIEF:

Marc E. Ackerman, White & Case, L.L.P., New York, New York; George Beall, Hogan & Hartson, L.L.P., Baltimore, Maryland, for Appellees.

Before WIDENER, WILKINSON, and KING, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the majority opinion, in which Judge WILKINSON joined. Judge WIDENER wrote a dissenting opinion.

OPINION

KING, Circuit Judge:r wa This appeal arises from the damages phase of a protracted copyright dispute involving the Baltimore Ravens football team. Frederick Bouchat, the holder of the infringed copyright, raises several challenges to the district court's conduct of proceedings that culminated in a jury verdict finding him entitled to no portion of the infringers' profits. In particular, Bouchat asserts that the court erroneously failed to accord him the benefit of a statutory presumption that an infringer's revenues are entirely attributable to the infringement. For the reasons explained below, we affirm.

I.

On November 6, 1995, the National Football League ("NFL") announced that one of its teams, the Cleveland Browns, would shortly be moving to Baltimore. The team was to leave its entire Browns identity in Cleveland, and thus would need a new name and logo when it moved to its new Maryland home. Bouchat, a Baltimore security guard and amateur artist, became interested in the new team, and he began drawing logo designs based on the various names that the team was considering, including the name "Ravens." On or about December 5, 1995, Bouchat created a drawing of a winged shield (the "Shield Drawing") as a "Ravens" logo.

In March of 1996, the Baltimore team adopted the name "Ravens." In early April, Bouchat sent the Shield Drawing via fax to the Maryland Stadium Authority. Beside the Shield Drawing, Bouchat penned a note asking the Chairman of the Authority to send the sketch to the Ravens' president. Bouchat also requested that if the Ravens used the Shield Drawing, they send him a letter of recognition and an autographed helmet.

In a jury trial on the issue of liability, Bouchat's Shield Drawing was found to have been mistakenly used by National Football League Properties, Inc. ("NFLP") in NFLP's production of the Ravens' new logo, the "Flying B." ¹ The Ravens had no knowledge that the NFLP had infringed anyone's work and assumed that the Flying B was an original work owned by NFLP. The Ravens used the

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Flying B as their primary identifying symbol, and the logo appeared in every aspect of the Ravens' activities, including uniforms, stationery, tickets, banners, on-field insignia, and merchandise.

II.

On May 8, 1997, Bouchat filed suit in the District of Maryland, alleging that the Ravens and NFLP (collectively, the "Defendants") had infringed his copyright on the Shield Drawing and on several other drawings, and seeking ten million dollars in damages. The court bifurcated the case and first tried the liability issues. On November 3, 1998, the jury found that Bouchat had proven infringement of the Shield Drawing. After the court certified the liability verdict for interlocutory appeal, a divided panel of this Court affirmed the finding of liability. Bouchat v. Baltimore Ravens, Inc., 228 F.3d 489 (4th Cir. 2000). We denied rehearing en banc, Bouchat v. Baltimore Ravens, Inc., 241 F.3d 350 (4th Cir. 2001), the Supreme Court denied certiorari, Baltimore Ravens, Inc. v. Bouchat, 532 U.S. 1038, 121 S.Ct. 2000, 149 L.Ed.2d 1003 (2001), and the matter was returned to the district court for trial of the damages issue.

Bouchat sought damages from the Ravens and NFLP pursuant to 17 U.S.C. § 504(a)(1), which renders an infringer liable for "the copyright owner's actual damages and any additional profits of the infringer, as provided by [17 U.S.C. § 504(b) ]." ² Section 504(b), in turn, entitles the copyright owner to recover both "the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages." 17 U.S.C. § 504(b). Because Bouchat made no claim for actual damages, the sole question presented for resolution in the damages trial was the amount, if any, of the Defendants' profits that was attributable to the infringement.

In his complaint, Bouchat contended that some portion of essentially all of the Defendants' revenues was attributable to the infringing use of Bouchat's artwork. ³ To satisfy his initial burden under § 504(b), Bouchat presented evidence of the gross receipts from all NFLP and Ravens activities. The district court, however, awarded partial summary judgment to the Defendants with respect to all revenues derived from sources other than (1) sales of merchandise bearing the Flying B logo, and (2) royalties obtained from licensees who sold such merchandise (collectively, the "Merchandise Revenues"). Bouchat v. Baltimore Ravens, Inc., 215 F.Supp.2d 611, 619, 621 (D.Md.2002). The court reasoned that "[i]f the use of the Flying B logo to designate the Ravens could not reasonably be found to have affected the amount of revenue obtained from an activity, the revenue from that activity could not reasonably be found attributable to the infringement." Id. at 617-18. Concluding that only the Merchandise Revenues could reasonably be

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found to have been affected by the Defendants' unlawful use of the Flying B, the court excluded, as a matter of law, the remainder of the Defendants' revenues (collectively, the "Non-Merchandise Revenues") from the pool of income that the jury could consider in awarding § 504 damages. ⁴

At the close of discovery, the district court further narrowed the scope of the Defendants' revenues from which the jury would be permitted to award § 504 damages, when it excluded certain portions of the Merchandise Revenues. Bouchat v. Baltimore Ravens, Inc., Order, No. 97-CV-1470 (D.Md. July 9, 2002) (the "July Order"). Specifically, the court awarded partial summary judgment to the Defendants as to Bouchat's claims for profits from "minimum guarantee shortfalls," ⁵ "free merchandise," ⁶ trading cards, video games, and game programs (collectively, the "Excluded Merchandise Revenues"). Id. at 1-2. ⁷Though it recognized that the Defendants "ha[ve] the burden of proof," the court nonetheless ruled that, with respect to the minimum guarantee shortfalls and the free merchandise, there could be no rational connection between the particular source of revenue and the act of infringement; and that, with respect to the trading cards, video games, and game program sales, the Defendants had produced unrebutted evidence establishing that the revenues received from those sources were not attributable to the infringement. Id. at 2 & nn.1-6. Like the court's earlier summary judgment award, the July Order had the effect of narrowing the scope of the Defendants' revenues that the jury could consider in deciding the amount of § 504 damages, if any, that Bouchat would recover. Both the Non-Merchandise Revenues and a substantial portion of the Merchandise Revenues having thus been excluded, only those revenues derived from the sale of t-shirts, caps, souvenir cups, and other items bearing the Flying B logo (collectively, the "Non-Excluded Merchandise Revenues") would go to the jury for a finding on attributability. ⁸

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The damages trial was conducted over a period of six days, from July 17 to 24, 2002. On July 23, 2002, at the close of the evidence, the jury was asked to decide whether the Defendants had proven, by a preponderance of the evidence, that the Non-Excluded Merchandise Revenues were attributable entirely to factors other than the Defendants' infringement of Bouchat's copyright. If the jury found that they were not, then it was charged to decide the percentage of the Non-Excluded Merchandise Revenues attributable to factors other than the infringement.

After a full day of deliberations, the jury answered the first question in the affirmative, thereby denying Bouchat any monetary recovery. On July 26, 2002, the court entered judgment on the jury verdict. Bouchat filed a timely notice of appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.

III.

A.

Bouchat's primary contention on appeal is that the district court erred in awarding partial summary judgment to the Defendants with respect to certain portions of the Defendants' revenues. In particular, Bouchat asserts that the court failed to give him the benefit of the § 504 statutory presumption that an infringer's revenues are entirely attributable to the infringement. That presumption, he maintains, creates a question of material fact that cannot be resolved on summary judgment. Thus, he asserts, whether any portion of an infringer's revenues are attributable to some source other than the infringement is a question that can be resolved only by a jury. As explained below, we disagree.

1.

We review de novo a district court's award of summary judgment. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1127-28 (4th Cir. 1987). Under the Federal Rules of Civil Procedure, summary judgment shall be awarded "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, ... show that there is no genuine issue...