Bouchat v. NFL Props. LLC
| Decision Date | 19 November 2012 |
| Docket Number | MJG–12–1905.,MJG–12–1495,Civil Action Nos. MJG–11–2878 |
| Citation | 910 F.Supp.2d 798 |
| Parties | Frederick E. BOUCHAT, Plaintiff v. NFL PROPERTIES LLC, et al., Defendants. Frederick E. Bouchat, Plaintiff v. NFL Enterprises LLC, et al., Defendants. Frederick E. Bouchat, Plaintiff v. Baltimore Ravens Limited Partnership, Defendant. |
| Court | U.S. District Court — District of Maryland |
OPINION TEXT STARTS HERE
Howard J. Schulman, Schulman and Kaufman LLC, Baltimore, MD, for Plaintiff.
Mark D. Gately, Andrea William Trento, Hogan Lovells US LLP, Gerard Patrick Martin, Paul Martin Flannery, Rosenberg Martin Greenberg LLP, Baltimore, MD, Rachel Elizabeth Epstein, Robert Lloyd Raskopf, Todd Anten, Quinn Emanuel Urquhart and Sullivan LLP, Elizabeth A. McNamara, Samuel M. Bayard, David Wright Tremaine LLP, New York, NY, for Defendants.
DECISION RE: FAIR USE ISSUES
The Court has before it motions for summary judgment 1 based upon a fair use defense in each of the three above-captioned cases.
In each case, the Defendants contended, and the Court agreed, that very limited discovery was necessary prior to the presentation of motions for summary judgment on the basis of a fair use defense. Accordingly, following limited discovery, the instant motions were filed.2
The Court has considered the materials submitted by the parties relating to the motions as well as the arguments of counsel presented at a hearing. The Court issues this decision determining the validity vel non of the fair use defense in regard to each of the three pending motions.
As detailed in no less than seven (so far) published decisions of this Court and the United States Court of Appeals for the Fourth Circuit,3 in late 1995, Plaintiff, Frederick E. Bouchat (“Bouchat”) created a drawing referred to as the “Shield Drawing” and obtained copyright rights therein.
The National Football League (“NFL”) and the Baltimore Ravens 4 infringed Bouchat's copyright by copying the Shield Drawing and creating what is referred to as the “Flying B Logo.”
The Ravens used the Flying B Logo as the teams' primary logo during the first three (1996, 1997, and 1998) seasons.
Bouchat sued the NFL and Ravens and established infringement of his copyright in the Shield Drawing by their use of the Flying B Logo. Bouchat, however, recovered no damages due to a jury finding that no part of the profits of the infringers, relating to the infringements then at issue, was attributable to the copyright infringement. Judgment awarding no damages was affirmed by the United States Court of Appeals for the Fourth Circuit.5
In 2008, Bouchat sued the Ravens and the NFL, seeking injunctive relief to halt the then ongoing use of the Flying B Logo in three manners:
1. The sale of season highlight films showing the 1996–98 Ravens on which the Flying B Logo was visible,
2. The display at football games of film clips of Ravens' teams from 1996–98 on which the Flying B Logo was visible, and
3. The display at the Ravens team headquarters of photographs of players and memorabilia (such as a first game ticket) on which the Flying B Logo was visible.
This Court, deciding the case on an agreed submitted record, held that there was no infringement because each of these uses was a non-infringing fair use under 17 U.S.C. § 107. Bouchat v. Baltimore Ravens Ltd. P'ship, 587 F.Supp.2d 686 (D.Md.2008). On appeal, the United States Court of Appeals for the Fourth Circuit reversed in part, agreeing that the aforesaid display was a fair use, but holding that the sale of highlight films and display of film clips at football games was not. Bouchat v. Baltimore Ravens Ltd. P'ship (“Bouchat 2010”), 619 F.3d 301 (4th Cir.2010). Thus, in Bouchat 2010, the case was remanded with directions to this Court to proceed to determine whether to grant injunctive relief.6
In the three above-captioned cases, Bouchat has sued for infringement of his copyright in the Shield Drawing due to the respective Defendants' use of the Flying B Logo as follows:
+-----------------------------------------------------------------------------+
¦Use At Issue ¦Defendant(s) ¦Case ¦
+-----------------------+-------------+---------------------------------------¦
¦Documentary videos ¦NFL ¦12–1495 (“the Documentary Video Case”) ¦
+-----------------------+-------------+---------------------------------------¦
¦Pictures on stadium ¦Ravens ¦12–1905 (“the Stadium Wall Pictures ¦
¦walls ¦ ¦Case”) ¦
+-----------------------+-------------+---------------------------------------¦
¦Madden NFL game ¦NFL & EA 7 ¦11–2878 (“the Madden NFL Game Case”) ¦
+-----------------------------------------------------------------------------+
The fair use determination in each case is based upon the same legal principles and the benefit of the decision of the United States Court of Appeals for the Fourth Circuit in Bouchat 2010.
A motion for summary judgment shall be granted if the pleadings and supporting documents “show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2).
The well-established principles pertinent to summary judgment motions can be distilled to a simple statement: The Court may look at the evidence presented in regard to a motion for summary judgment through the non-movant's rose-colored glasses, but must view it realistically. After so doing, the essential question is whether a reasonable fact finder could return a verdict for the non-movant or whether the movant would, at trial, be entitled to judgment as a matter of law. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir.1991).
The Court does not find that genuine issues of material fact 8 would prevent a grant of summary judgment in regard to the instant motions.
A copyright owner's ability to obtain relief for an unauthorized use of a copyrighted work is subject to a statutory exception for “fair use” provided in 17 U.S.C. § 107. Bouchat 2010, 619 F.3d at 307.
Courts have traditionally regarded fair use of a copyrighted work as “a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.” Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 549, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (quoting H. Ball, Law of Copyright and Literary Property 260 (1944)).
A person who makes fair use of a copyrighted work is not an infringer even if such use is otherwise inconsistent with the exclusive rights of the copyright owner. See17 U.S.C. § 107 ().
The doctrine of fair use is an equitable one, and the “fair use inquiry is ‘not to be simplified with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.’ ” Bouchat 2010, 619 F.3d at 308 (quoting Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 577, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994)). Congress has enumerated four nonexclusivefactors for courts to consider when evaluating whether a particular use is a fair use:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C. § 107.
The use of the Flying B Logo in each of the three cases at issue is measured in light of these factors, keeping in mind, as directed by the Fourth Circuit, that “the factors are not to be treated in isolation, but rather the results are to be weighed together, in light of the purposes of copyright.” Bouchat 2010, 619 F.3d at 308 (quoting Campbell, 510 U.S. at 578, 114 S.Ct. 1164 (internal quotation marks omitted)).
The first factor calls upon courts to consider “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107. Here, courts generally consider a set of subfactors, including the commercial or noncommercial character of the use, the degree to which the use is transformative, the defendant's good or bad faith, and whether the purpose of the use falls within one of the categories of purposes mentioned in the preamble of section 107.
In assessing the character of the use, courts consider the specific examples set forth in section 107's preamble—criticism, comment, news reporting, teaching, scholarship, and research. 17 U.S.C. § 107. Certainly, this is not intended to be an exhaustive list, nor even presumptively fair, but it does guide the court as being representative of uses that are protected. Bouchat 2010, 619 F.3d at 308, 309.
Although the commerciality of the defendant's use is merely one factor among others that a court may consider as part of its analysis of the purpose and character of the use, a commercial purpose “tends to weigh against a finding that the challenged use is a fair use.” Id. at 310–11;Campbell, 510 U.S. at 583–84, 114 S.Ct. 1164. “The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the [protected] material without paying the customary price.” Bouchat 2010, 619 F.3d at 311 (quoting Harper & Row, 471 U.S. at 562, 105 S.Ct. 2218).
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