Bouchat v. Baltimore Ravens, Inc.

• Decision Date: 01 February 2002
• Docket Number: No. 97-CV-1470.,97-CV-1470.
• Citation: 215 F.Supp.2d 611
• Parties: Frederick E. BOUCHAT, Plaintiff, v. BALTIMORE RAVENS, INC., et al., Defendants.
• Court: U.S. District Court — District of Maryland

215 F.Supp.2d 611

Frederick E. BOUCHAT, Plaintiff, v. BALTIMORE RAVENS, INC., et al., Defendants.

No. 97-CV-1470.

United States District Court, D. Maryland.

January 31, 2002.

Decision supplementing corrected memorandum and order February 1, 2002.

CORRECTED¹ MEMORANDUM AND ORDER OF OCTOBER 5, 2001

GARBIS, District Judge.

The Court has before it Defendants' Motion for Partial Summary Judgment and the materials submitted relating thereto. The Court has held a hearing and had the benefit of the arguments of counsel.

I. BACKGROUND²

In 1995, Plaintiff Frederick E. Bouchat ("Bouchat") was employed as a security guard at a State Office building. He enjoyed drawing pictures inspired by comic book characters, in particular Batman. On November 6, 1995, there was a public announcement that the Cleveland Browns would be moving to Baltimore within a short time, developing local (Baltimore) interest in a new name for the team. Bouchat became interested in the new football team and began drawing designs for the team using various names, including the name "Ravens." On or about December 5, 1995, Bouchat created what shall be referred to as the "Shield Drawing."

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In March of 1996, the Baltimore team adopted the name "Ravens." On April 1st or 2nd of 1996, Bouchat sent to the Maryland Stadium Authority a fax of the Shield Drawing³ with a note written thereon asking the Chairman of the Authority to send the sketch to Mr. Modell (President of the Ravens). Bouchat further wrote in the note "If he would like this design if he does use it I would like a letter of recognition and if the team wants to I would like a adiograph (sic) helmet."

There is no evidence that anyone connected with the Defendants intentionally caused Plaintiff's drawing to be considered by the designers engaged by NFL Properties to design the Ravens' logo. Nevertheless, presumably due to a misunderstanding as to its origination, Plaintiff's drawing was used by the graphic artists engaged by NFL Properties in their production of the "Flying B logo."

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The Defendants, with no knowledge that the designers had infringed anyone's work and assuming that they were dealing with an original work owned by NFL Properties, used the Flying B logo as the primary Ravens' identifying symbol. The Flying B logo was used in every aspect of the Ravens' activities including, but not limited to, player's uniforms, stationery, tickets, banners, on-field insignia and on merchandise offered for sale. The Flying B logo was included in the portfolio of NFL team logos licensed for use by merchandisers.

Plaintiff filed this lawsuit alleging infringement of his copyright on the Shield Drawing as well as several other drawings. The Court bifurcated the case and first tried liability issues. On November 3, 1998, the jury found that Plaintiff had proven infringement of the Shield Drawing, but not the other drawings. In August of 1999, the Court certified the case for interlocutory appeal. On October 3, 2000, the Fourth Circuit affirmed the finding of liability. Bouchat v. Baltimore Ravens, Inc., 241 F.3d 350 (4th Cir.2001). The case is now before the Court for trial of damages issues. By the instant motion, Defendants seek summary judgment with regard to certain of Plaintiff's damages claims.

II. DISCUSSION

A. Partial Summary Judgment is Appropriate

Under the federal copyright statute, an infringer is liable for either:

(1) the copyright owner's actual damages and any additional profits of the infringer, as provided by subsection (b); or

(2) statutory damages, as provided by subsection (c).

17 U.S.C. § 504(a).

A prevailing copyright plaintiff may elect, at any time prior to the entry of final judgment, to recover statutory damages in lieu of actual damages and profits. 17 U.S.C. § 504(c)(1). In this case, with one infringed work, statutory damages would be no more than $30,000⁴ and could be as little as $200.00 or $750.00. 17 U.S.C. § 504(c)(1),(2).

Bouchat, apparently making no claim for actual damages, seeks to recover the "profits of the infringer[s]" pursuant to 17 U.S.C. § 504(b). That statute provides, in pertinent part:

(b) Actual Damages and Profits. — The copyright owner is entitled to recover ... any profits of the infringer that are attributable to the infringement .... In establishing the infringer's profits, the copyright owner is required to present proof only of the infringer's gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

To meet his initial damage burden of proof, Bouchat has presented evidence of the gross receipts from all activities of Defendants National Football League Properties, Inc. and Baltimore Ravens, Inc. Under the statutory scheme, the burden shifts to the Defendants to prove "deductible expenses and the elements of profit attributable to factors other than the copyrighted work." Id. The Defendants assert that certain categories of their gross receipts include no revenues "attributable to the infringement" and seek summary judgment as to Plaintiff's claim with respect to those categories of receipts. Defendants' position is consistent with appellate decisions recognizing that the statutory language "infringer's gross revenues" must be interpreted to mean gross revenues which are related to the infringement so as possibly to include receipts "attributable to the infringement."

As stated in Taylor v. Meirick, in which the defendant copied and sold 3 of plaintiff's copyrighted maps as well as other merchandise:

all [the burden shifting language of § 504(b)] means is that [the plaintiff] could have made out a prima facie case for an award of infringer's profits by showing [the defendant's] gross revenues from the sale of the infringing maps. It was not enough to show [the defendant's] gross revenues from the sale of everything he sold....

712 F.2d 1112, 1122 (7th Cir.1983).

Moreover, even to the extent that a Plaintiff can shift the burden of proof by showing gross receipts from activities related to the infringement, a Defendant may still be entitled to summary judgment. In such a case, the Defendant, under generally applicable summary judgment principles, can be granted summary judgment to the extent that there is no genuine issue of material fact with respect to particular expenses or elements of profit attributable to factors other than the copyrighted work.

Defendants recognize that receipts relating to the Defendants' sale of merchandise bearing the Flying B logo and royalties obtained from licensees who sold such merchandise could include some revenues attributable to the infringement. Accordingly, the Defendants acknowledge that there are genuine issues of material fact as to "the deductible expenses and the elements of profit attributable to factors other than the copyrighted work" with regard to millions, and perhaps tens or hundreds of millions, of dollars of their gross receipt. Defendants contend, however, that their other sources of revenue could not reasonably be found to have been attributable to any degree at all by the use of the Flying B logo. The Defendants place their other sources of revenue in the following categories:

1. Sponsorships.

2. Broadcast and other media licenses.

3. Ticket sales.

4. General business revenues.

Bouchat, as can best be determined from the papers and arguments of counsel, contends that virtually every category of Defendants' gross receipts would include revenues attributable to the infringement because of the Defendants' widespread use of the "Flying B" as the primary logo for the Baltimore Ravens. Counsel's rationale seems to be that the use of the logo in regard to an activity means that the revenues derived from that activity would be, in part, attributable to the infringement. Hence, he argues that revenues obtained from such sources as ticket sales, parking at games, and food sales at games are, in part, attributable to the use of the Flying B logo.

Plaintiff's counsel concedes that there are some categories of revenues that could not, in any part, be attributable to the infringement. Thus, he acknowledges that the use of the Flying B logo by other teams (on their game tickets, for example), the interest earned on Ravens' checking accounts, and the revenues obtained from stadium rental would not, in any part, be attributable to the infringement even though the Flying B was presented on Ravens' checks and prominently featured on the playing field. Tr. pg.23 ln.8, — pg.24 ln.11, pg.27 ln.12 — pg.28, ln.8.

Accordingly, even Plaintiff's counsel acknowledges, as he must, that there are some categories of Defendants' gross receipts which generate no profits attributable to the infringement. The question thus presented is not whether the Defendants are entitled to partial summary judgment as to a portion of their gross receipts. Rather, the issue is the extent to which partial summary judgment is appropriate.

B. The Extent of Partial Summary Judgment

In the context of copyright infringement litigation, the instant case presents an unusual and, to an extent unique, situation. In most, if not all, of the reported cases, the copyrighted work has an intrinsic value which the infringer uses to generate profits. For example, the script of a play which is used in a motion picture⁵, the use of a copyrighted representation of a product in an advertisement indicating that the product (or equivalent) would be available from the infringer⁶, the use of part of a copyrighted work in advertisements indicating that the infringer was selling a new edition of the copyrighted work⁷, the inclusion of a copyrighted photograph in a magazine published by an infringer⁸, etc.

In such a case, it is appropriate to view the infringer as taking or using value inherent...