Frederick Bouchat v. Baltimore Ravens Limited Partnership , 737 F.3d 932 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2543
FREDERICK E. BOUCHAT,
Plaintiff - Appellant,
v.
BALTIMORE RAVENS LIMITED PARTNERSHIP,
Defendant - Appellee.
------------------------
INTERNATIONAL DOCUMENTARY ASSOCIATION; FILM INDEPENDENT;
MOTION PICTURE ASSOCIATION OF AMERICA, INCORPORATED,
Amici Supporting Appellee.
No. 12-2548
FREDERICK E. BOUCHAT,
Plaintiff - Appellant,
v.
NFL ENTERPRISES LLC; NFL NETWORK SERVICES, INC.; NFL
PRODUCTIONS LLC, d/b/a NFL Films, a subsidiary of NFL
Ventures L.P.,
Defendants - Appellees.
-------------------------
INTERNATIONAL DOCUMENTARY ASSOCIATION; FILM INDEPENDENT;
MOTION PICTURE ASSOCIATION OF AMERICA, INCORPORATED,
Amici Supporting Appellees.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:12-cv-01905-MJG; 1:12-cv-01495-MJG)
Argued: October 31, 2013 Decided: December 17, 2013
Before WILKINSON, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Duncan and Judge Diaz joined.
ARGUED: Howard J. Schulman, SCHULMAN & KAUFMAN, LLC, Baltimore,
Maryland, for Appellant. Robert Lloyd Raskopf, QUINN EMANUEL
URQUHART & SULLIVAN, LLP, New York, New York, for Appellees. ON
BRIEF: Marie J. Ignozzi, SCHULMAN & KAUFMAN, LLC, Baltimore,
Maryland, for Appellant. Mark D. Gately, HOGAN LOVELLS US LLP,
Baltimore, Maryland; Sanford I. Weisburst, Todd Anten, Rachel E.
Epstein, QUINN EMANUEL URQUHART & SULLIVAN, LLP, New York, New
York, for Appellees. Julie A. Ahrens, Timothy Greene, STANFORD
LAW SCHOOL CENTER FOR INTERNET & SOCIETY, Stanford, California,
for International Documentary Association, Motion Picture
Association of America, Inc., and Film Independent, Amici
Supporting Appellees.
2
WILKINSON, Circuit Judge:
This case presents the latest chapter in extensive
litigation over the Baltimore Ravens “Flying B” logo. Frederick
Bouchat challenges the National Football League’s use of the
logo in three videos featured on its television network and
various websites, as well as the Baltimore Ravens’ display of
images that include the logo as part of exhibits in its stadium
“Club Level” seating area. The district court found that the
defendants’ use of the Flying B logo in both settings was fair
and therefore did not infringe Bouchat’s copyright. We affirm.
Any other result would visit adverse consequences not only upon
filmmaking but upon visual depictions of all sorts.
I.
In June 1996, months before the beginning of the Baltimore
Ravens’ inaugural season, the organization unveiled the Flying B
logo as its symbol. The logo featured a gold shield with a
purple “B” at its center and purple wings extending from either
side. Frederick Bouchat, the plaintiff and appellant here,
noticed that the logo bore a strong resemblance to one he had
created and provided to the chairman of the Maryland Stadium
Authority months earlier, to be passed on to the Ravens
franchise. Bouchat also requested compensation, assertedly of a
nominal nature, in exchange for the Ravens’ use of the logo.
3
Upon recognizing the logo, Bouchat obtained a copyright
registration on his drawings but did not contact the Ravens at
that time.
In May of 1997, after the Ravens had played their first
season, Bouchat filed his first lawsuit against the Ravens and a
subsidiary of the National Football League (“NFL”), alleging
that the Flying B logo infringed the copyright in three of his
drawings. Ultimately, this court refused to set aside a jury’s
verdict that the defendants were liable as to one of the
drawings. See Bouchat v. Baltimore Ravens, Inc., 241 F.3d 350,
353 & n.1, 357 (4th Cir. 2000) (“Bouchat I”).
After the 1998 season, the Baltimore Ravens adopted a new
logo (the “Raven Profile Logo”) and no longer featured the
Flying B on their uniforms and merchandise. We have subsequently
issued three more decisions in lawsuits brought by Bouchat
regarding the Flying B logo. See Bouchat v. Baltimore Ravens
Football Club, Inc., 346 F.3d 514 (4th Cir. 2003) (“Bouchat II”)
(affirming a jury award of zero dollars for the original
infringement); Bouchat v. Bon-Ton Dep't Stores, Inc., 506 F.3d
315, 328 (4th Cir. 2007) (“Bouchat III”) (affirming a number of
judgments in favor of NFL licensees that had used the Flying B
logo because Bouchat was “precluded from obtaining actual
damages against them”); Bouchat v. Baltimore Ravens Ltd. P'ship,
619 F.3d 301 (4th Cir. 2010) (“Bouchat IV”) (finding that
4
footage of the Flying B logo in season highlight films and in a
short video shown on the large screen during Ravens home games
was not fair use, but that the Ravens’ display of the logo in
images in its corporate lobby was).
Bouchat commenced the suits currently before this court in
May and June of 2012. He seeks to, inter alia, enjoin defendants
from using the Flying B Logo incidentally in videos and
photographs that were not at issue in Bouchat IV. Bouchat has
alleged infringement in three videos that appeared on the NFL
Network, as well as on the NFL.com or other websites. These
videos feature fleeting and infrequent footage of the Flying B
logo. He has also challenged the Ravens’ use of pictures with
the Flying B Logo in historical exhibits in the Club Level area
of M&T Bank Stadium.
The district court found, on summary judgment, that the
defendants’ limited use of the Flying B logo qualified as fair
use. For both the videos and the photograph displays, it applied
each of the four fair use factors laid out in the copyright
statute: (1) “the purpose and character of the use”; (2) “the
nature of the copyrighted work”; (3) “the amount and
substantiality of the portion used”; and (4) “the effect of the
use upon the potential market for the copyrighted work.” 17
U.S.C. § 107. For both the videos and the photos, the district
court found that the first factor counseled in favor of fair
5
use. In particular, the district court emphasized that the use
of the logo was “transformative,” which the Supreme Court has
described as a use that “adds something new, with a further
purpose or different character, altering the first with new
expression, meaning, or message.” Campbell v. Acuff-Rose Music,
Inc., 510 U.S. 569, 579 (1994). Because of the substantially
transformative nature of the uses, the second and third factors
did not weigh against fair use. Discussing the fourth factor,
the district court found that the use of the logo in the videos
and displays was minimally commercial, and that the
substantially transformative nature of the use offset any
negative effect on the potential market for the Flying B logo.
The court then weighed the four factors together for both
the videos and the displays, and determined that the first
factor counseled strongly in favor of fair use, while the
remaining factors were either neutral or militated only slightly
against fair use. Consequently, it found the uses in both
settings fair. This appeal followed.
II.
The power over patent and copyright granted to Congress in
Article I, Section 8 of the Constitution “is intended to
motivate the creative activity of authors and inventors by the
provision of a special reward, and to allow the public access to
6
the products of their genius after the limited period of
exclusive control has expired.” Sony Corp. of Am. v. Universal
City Studios, Inc., 464 U.S. 417, 429 (1984). To effectuate this
public benefit, § 106 of the Copyright Act grants “a bundle of
exclusive rights to the owner of the copyright,” including the
rights “to publish, copy, and distribute the author’s work.”
Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539,
546-47 (1985); see also 17 U.S.C. § 106. In order to vindicate
the same “constitutional policy of promoting the progress of
science and the useful arts” that underlies the Patent and
Copyright Clause, courts developed the doctrine of fair use,
which fosters new creation and innovation by limiting the
ability of writers and authors to control the use of their
works. Harper & Row, 471 U.S. at 549 (internal quotation marks
omitted).
The Copyright Act of 1976 codified the fair use doctrine
for the first time, creating § 107 as a statutory exception to
the typical protections provided to copyright holders in § 106.
Bouchat IV, 619 F.3d at 307 (citing Campbell v. Acuff-Rose
Music, Inc., 510 U.S. 569, 576 (1994)). “Congress meant § 107 to
restate the present judicial doctrine of fair use, not to
change, narrow, or enlarge it in any way and intended that
courts continue the common-law tradition of fair use
adjudication.” Campbell, 510 U.S. at 577 (internal quotation
7
marks omitted). As a result, the fair use doctrine continues to
serve as “an equitable rule of reason, for which no generally
applicable definition is possible.” Sundeman v. Seajay Soc'y,
Inc., 142 F.3d 194, 202 (4th Cir. 1998) (internal quotation
marks omitted).
Nonetheless, Congress did provide a list of four factors
that “guide the determination of whether a particular use is a
fair use.” Bouchat IV, 619 F.3d at 308 (internal quotation marks
omitted). Those factors are:
(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. These factors cannot be treated in isolation
from one another, but instead must be “weighed together, in
light of the purposes of copyright.” Campbell, 510 U.S. at 578.
This balancing necessitates a “case-by-case analysis” in any
fair use inquiry. Id. at 577. Our precedents have placed primary
focus on the first factor. See Bouchat IV, 619 F.3d at 308-11,
313-14; Bond v. Blum, 317 F.3d 385, 394-95 (4th Cir. 2003);
Sundeman, 142 F.3d at 202-04. A finding of fair use is a
8
complete defense to an infringement claim: “the fair use of a
copyrighted work . . . is not an infringement of copyright.” 17
U.S.C. § 107.
A fair use defense “presents a mixed question of law and
fact.” Bouchat IV, 619 F.3d 307. We review the district court’s
legal conclusions de novo and its factual findings for clear
error. Sundeman, 142 F.3d at 201.
III.
Bouchat first challenges the NFL’s fleeting uses of the
Flying B logo in three videos featured on the NFL Network and
various websites. Bouchat claims that these uses, described
below, are not fair use and consequently infringe his copyright.
For the reasons that follow, we hold that the NFL’s incidental
displays of the Flying B logo in the videos are indeed fair use.
A.
The three videos Bouchat challenges were produced by the
NFL for display on the NFL network, and were also featured on
websites including NFL.com and Hulu.com. Two of the videos were
part of the film series Top Ten, each episode of which features
a countdown of ten memorable players, coaches, or events in NFL
history. The third video is part of the Sound FX series, which
provides viewers with an inside look at the sights and sounds of
the NFL through players who wear microphones. Consistent with
9
our responsibility to examine each use on a “case-by-case”
basis, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577
(1994), we examine the various videos in detail in order to
determine the nature of the use of the Flying B logo in each.
Top Ten: Draft Classes recounts and analyzes in short
segments the ten best NFL draft classes of all time. It begins
by explaining that the purpose of the video is to declare which
draft classes are most impressive. The video features a four-
minute segment on the Baltimore Ravens’ 1996 draft class, rated
number six by the show. It contains interviews with players,
journalists, and Ravens front office personnel regarding the
team’s move to Baltimore and the quality of the 1996 draft
class. It also shows historical footage from the day of the
draft. These interviews and voiceovers make up the vast majority
of the video. In two spots, however, the Flying B logo is
visible for less than one second: once on a banner and a helmet
at the opening of the segment, and again on the side of a helmet
during game footage toward the end of the segment. The four
minute video uses its interviews and historical footage,
including the exceptionally brief appearances of the Flying B
logo, to tell the story of the Ravens 1996 draft class and its
impact on the new organization.
The second video, Top Ten: Draft Busts, also begins with
narration that explains that the episode will showcase the least
10
successful draft picks. It then features short segments on each
unsuccessful pick or set of picks, including the number eight
“bust” Lawrence Phillips, who was selected by the St. Louis Rams
in 1996. The video features discussion of Phillips’s college
career, interviews with those present at the time, news reports
detailing his trouble with the law, and footage from practices
and games. The segment recounts Phillips’s promise as a football
player and the problems that prevented him from fulfilling it.
At the end of the segment, a defensive player tackles Phillips,
and it is possible to catch a glimpse of the Flying B logo on
the player’s helmet if one chances to look at it for the
fraction of a second it is visible.
The final video, Sound FX: Ray Lewis, features a collection
of footage and audio of Ray Lewis throughout his career. The 24-
minute video is split into eight sections, each of which tells
the story of a different aspect of Lewis’s career though video
footage and recorded statements by Lewis and those around him.
One of the segments focuses on Ray Lewis at training camp and
lasts for roughly two minutes. During an eight-second period of
the training camp segment, the Flying B logo is visible on some
of the Ravens players’ helmets. And twice in other segments of
the show, as Lewis makes a tackle, the Flying B logo is
partially visible for less than one second. Otherwise, the Raven
11
Profile logo is the only logo visible throughout Sound FX: Ray
Lewis.
Bouchat argues that the use of the Flying B logo in these
three videos does not qualify as fair use. First, Bouchat argues
that this court’s decision in Bouchat IV bars the NFL’s fair use
claim because the highlight videos at issue in that case are
“materially indistinguishable” from the videos in this case.
Appellant’s Br. at 29. He further contends that an independent
assessment of the fair use factors requires a finding of
infringement. Focusing largely on the first fair use factor --
the purpose and character of the use -- Bouchat contends that
the use of the Flying B logo was not transformative. It is, he
claims, being used in the same way in these videos as it was in
the infringing videos in Bouchat IV: to identify Ravens players.
And even if the use were transformative, the district court
erred by not weighing the transformation against the
commerciality of the use under the first factor, as well as
against the remaining § 107 factors. Finally, Bouchat disputes
the district court’s finding that the defendants acted in good
faith, arguing that they were serial infringers whose bad faith
was all too evident.
B.
The first fair use factor focuses on “the purpose and
character of the use, including whether such use is of a
12
commercial nature or is for nonprofit educational purposes.” 17
U.S.C. § 107(1). The preamble to § 107 lists examples of uses
that are fair: “criticism, comment, news reporting, teaching . .
. scholarship, or research.” Id. § 107. These examples serve as
a “guide[]” for analysis under the first factor. Campbell, 510
U.S. at 578. The essential inquiry under the first factor can be
separated into two parts: whether the new work is
transformative, see id. at 579, and the extent to which the use
serves a commercial purpose. See Bouchat IV, 619 F.3d at 310-11.
We discuss each in turn.
1.
“A ‘transformative’ use is one that ‘employ[s] the quoted
matter in a different manner or for a different purpose from the
original,’ thus transforming it.” A.V. ex rel. Vanderhye v.
iParadigms, LLC, 562 F.3d 630, 638 (4th Cir. 2009) (quoting
Pierre N. Leval, Commentary, Toward a Fair Use Standard, 103
Harv. L. Rev. 1105, 1111 (1990)). Transformative works rarely
violate copyright protections because “the goal of copyright, to
promote science and the arts, is generally furthered by the
creation of transformative works. Such works thus lie at the
heart of the fair use doctrine's guarantee of breathing space
within the confines of copyright.” Campbell, 510 U.S. at 579.
Importantly, a transformative use is one that “adds something
13
new” to the original purpose of the copyrighted work. Id.;
Bouchat IV, 619 F.3d at 314.
Each of the videos in this case is intended to present a
narrative about some aspect of Ravens or NFL history. Top Ten:
Draft Classes recounts the Ravens’ 1996 draft, documenting
football’s return to Baltimore, the team’s strategy for the 1996
draft, and the impressive result of its efforts. During the
four-minute segment’s interviews, archival footage, and
voiceover, the Flying B logo is visible two different times, for
less than one second each time. Top Ten: Draft Busts recounts
the disappointing path of Lawrence Phillips’s once promising
career, complete with interviews, game tape, and news footage.
Toward the end of the four-minute segment, the Flying B logo is
partially visible on the helmet of a Raven tackling Phillips for
a fraction of a second. Finally, Sound FX: Ray Lewis provides an
inside look at the career of Ray Lewis through the sights and
sounds that accompanied his play. The Flying B is visible for a
longer stretch during this video, though the Raven Profile logo,
which has identified the Ravens since the 1999 season, is,
comparatively, featured much more prominently.
The use of the Flying B logo in each of these videos
differs from its original purpose. Bouchat IV, 619 F.3d at 314.
See also Campbell, 510 U.S. at 579. It initially served as the
brand symbol for the team, its on-field identifier, and the
14
principal thrust of its promotional efforts. None of the videos
use the logo to serve the same purpose it once did. Instead,
like the historical displays featuring the Flying B logo in the
lobby of the Ravens’ headquarters in Bouchat IV, these videos
used the Flying B as part of the historical record to tell
stories of past drafts, major events in Ravens history, and
player careers. Bouchat IV, 619 F.3d at 314; see also Bill
Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609-10
(2d. Cir. 2006) (finding that Grateful Dead posters reproduced
in a biographical text served as “historical artifacts” that
helped readers to understand the text). The logo, then, is being
used “not for its expressive content, but rather for its . . .
factual content,” Bouchat IV, 619 F.3d at 314 (quoting Bond v.
Blum, 317 F.3d 385, 396 (4th Cir. 2003)), and in such a manner
that no doubt “adds something new.” Id. And contrary to
Bouchat’s claims, it does not matter that the Flying B logo is
unchanged in the videos, for “[t]he use of a copyrighted work
need not alter or augment the work to be transformative in
nature.” Vanderhye, 562 F.3d at 639.
This finding of transformative use is reinforced by the
exceptionally insubstantial presence of the Flying B logo in
these videos. In the vast majority of its appearances, it is
present for fractions of a second, and can be perceived only by
someone who is looking for it. “The extent to which unlicensed
15
material is used in the challenged work can be a factor in
determining whether a . . . use of original materials has been
sufficiently transformative to constitute fair use.” Bill Graham
Archives, 448 F.3d at 611. The Flying B logo cannot be said to
serve its original function of identifying the Ravens players
and organization if it is all but imperceptible to those viewing
the videos. It serves no expressive function at all, but instead
acts simply as a historical guidepost -- to those who even
detect it –- within videos that construct new narratives about
the history of the Ravens and the NFL. See Bond, 317 F.3d at
396; Elvis Presley Enters., Inc. v. Passport Video, 349 F.3d
622, 629 (9th Cir. 2003) (noting the transformative nature of
using copyrighted works as historical context), overruled on
other grounds by Flexible Lifeline Sys., Inc. v. Precision Lift,
Inc., 654 F.3d 989, 995 (9th Cir. 2011) (per curiam).
The sole video that features the Flying B for long enough
that it could serve as an identifier is Sound FX: Ray Lewis. The
episode runs for nearly 24 minutes, and features just one
stretch of less than ten seconds in which the Flying B logo is
visible more than fleetingly. The 24-minute video is replete
with countless images of the Raven Profile logo, both in game
and practice footage, which currently serves to identify the
Ravens and adorns their merchandise. It is the Raven Profile
logo, and not the Flying B, that now serves an expressive
16
function. See Bill Graham Archives, 448 F.3d at 611 (posters
reproduced in a biographical work were “inadequate to offer more
than a glimpse of their expressive value”). The Flying B logo,
used only incidentally, no longer serves “the same intrinsic
purpose as the original,” Am. Geophysical Union v. Texaco Inc.,
60 F.3d 913, 923 (2d Cir. 1994). Its use therefore qualifies as
transformative.
Bouchat argues that the uses of the Flying B logo in the
videos in this case are indistinguishable from those adjudicated
in Bouchat IV. Appellant’s Br. at 28-31. Both, he says, act to
identify the team. In reality, however, the uses are strikingly
different. In the season highlight films from Bouchat IV, the
logo was shown again and again, always as a brand identifier for
the Ravens organization and its players. Bouchat IV, 619 F.3d at
306-07. As we found, the logo simply replicated its original
function when footage of the seasons was shot, condensed, and
reproduced in a summary film. Id. at 309. But the current use,
as noted above, differs in two important respects from the
Bouchat IV videos. We found in that case that the season
highlight videos did not change the way in which viewers
experienced the logo, making the use non-transformative. Id.Here, however, because the videos used the historical footage to
tell new stories and not simply rehash the seasons, it used the
Flying B logo for its “factual content” and was transformative.
17
See id. at 314. Equally important is the fact that, while the
logo was featured substantially, again and again, in the season
highlight films, it was used only fleetingly and insignificantly
here. Its function as an identifier was significantly
diminished, limiting its expressive value.
This court’s two hypotheticals in Bouchat IV provide a
particularly useful contrast between the videos in that case and
those presently before the court. In finding that the season
highlight videos were not fair use, we laid out two different
viewer experiences:
In the first, an individual at home in her living room
in 1996 watches a Ravens football game on television.
The Flying B logo on the helmets of one team helps her
identify the team as the Ravens. In the second, an
individual at home today (2010) in his living room
watches the 1996 Ravens season highlight film. The
Flying B logo on the helmets of one team helps him
identify the team as the Ravens. The logo plays the
same role in each example. Its purpose is not
transformed in the highlight film, viewed some
fourteen years later.
Id. at 309. In the season highlight videos, the Flying B still
served the purpose of identifying the team as the Ravens as they
play opponents -- its core and crucial function. But in the Top
Ten and Sound FX videos, where it is rarely visible for more
than a second, it cannot possibly serve as a meaningful
identifier of the franchise. Instead, like the Flying B in the
corporate lobby, it is used for its factual content to tell new
historical narratives about the players and franchise. See id.18
at 314. The use of the Flying B logo is thus substantially
transformative.
2.
The first factor also requires an inquiry into the
commercial nature of the use at issue. While a commercial
purpose “may weigh against a finding of fair use,” Campbell, 510
U.S. at 579, the Supreme Court has warned us not to over-
emphasize its impact: “If, indeed, commerciality carried
presumptive force against a finding of fairness, the presumption
would swallow nearly all of the illustrative uses listed in the
preamble paragraph of § 107, including news reporting, comment,
criticism, teaching, scholarship, and research, since these
activities are generally conducted for profit in this country.”
Id. at 584 (internal quotation marks omitted). Vast numbers of
fair uses occur in the course of commercial ventures. An
overbroad reading of the commercial sub-prong would thus
eviscerate the concept of fair use. See Vanderhye, 562 F.3d at
639. Instead, the commerciality inquiry is most significant when
the allegedly infringing use acts as a direct substitute for the
copyrighted work. Campbell, 510 U.S. at 591. Meanwhile, “the
more transformative the new work, the less will be the
significance of other factors, like commercialism, that may
weigh against a finding of fair use.” Vanderhye, 562 F.3d at 639
19
(quoting Campbell, 510 U.S. at 579) (internal quotation marks
omitted).
In this case, there is no doubt, as the district court
found, that the NFL has produced and distributed these videos
for commercial gain. But as the district court also noted, the
“substantially transformative” nature of the use renders its
commercial nature largely insignificant. J.A. 200. Indeed, in
Bouchat IV, when evaluating the commerciality of the season
highlight films, we noted that because we had found the use of
the logo “non-transformative, we have no hesitation in
concluding that the commercial nature of the use weighs against
a finding of fair use.” 619 F.3d at 311. Here, however, where we
have found the use of the Flying B logo to be substantially
transformative, the NFL’s profit-seeking weighs much less
strongly against a finding of fair use.
Finally, the limited nature of the uses counsels against
placing significant weight on their commercial nature. The key
inquiry is the extent to which the Flying B logo itself -- and
not the videos as a whole -- provides commercial gain to the
NFL. “[T]he degree to which the new user exploits the copyright
for commercial gain -- as opposed to incidental use as part of a
commercial enterprise -- affects the weight” due to the
commercial character of a particular use. Elvis Presley Enters.,
Inc., 349 F.3d at 627. The uses of the Flying B logo in these
20
three videos can only properly be described as incidental to the
larger commercial enterprise of creating historical videos for
profit. Although the logo was part of a product created for
commercial gain, its role in facilitating that gain was
unquestionably minimal.
3.
Bouchat has also urged this court to make a finding of bad
faith on the part of the NFL and the Ravens, largely due to past
findings of infringement by both entities. Appellant’s Br. at
40-41, 50. As an initial matter, “good faith” is not listed as a
fair use factor in § 107 of the Copyright Act and it is
questionable whether allegations of subjective “bad faith” could
undercut a use that objectively was fair. See Campbell, 510 U.S.
at 585 n.18. Even assuming that they could, however, the
district court refused to find that the NFL and the Ravens acted
in bad faith here, noting: “there is nothing to put into doubt
the NFL’s good faith in believing that the uses of the Flying B
Logo in Documentaries were non-infringing fair uses.” J.A. 201.
See also J.A. 195 (making the same finding with regard to the
Ravens). Bouchat directs us to previous examples of infringement
by the Ravens and the NFL, and asks that we infer bad faith.
Absent any evidence to support this conclusion, we decline to
disturb the ruling of the district court. The transformative
nature of the defendants’ uses of the Flying B logo provided
21
them with every reason to believe that their use was fair. In
Bouchat IV, we addressed the past actions of the defendants, and
noted that they were relevant in part because “the purpose of
the use [was] not transformed.” 619 F.3d at 311. Here, because
the use is transformative, any past infringement is simply
inapposite.
C.
The fleeting and transformative use of the Flying B logo in
the videos means that the first factor in § 107 counsels
strongly in favor of fair use. The remaining criteria do nothing
to undermine this conclusion. The second factor concerns “the
nature of the copyrighted work.” 17 U.S.C. § 107(2). The logo is
a creative work, and therefore “closer to the core of works
protected by the Copyright Act.” Bouchat IV, 619 F.3d at 311(internal quotation marks omitted). Nonetheless, “if the
disputed use of the copyrighted work is not related to its mode
of expression but rather to its historical facts, then the
creative nature of the work” matters much less than it otherwise
would. Vanderhye, 562 F.3d at 640 (internal quotation marks
omitted). Indeed, as we noted in Bouchat IV, “the second factor
may be of limited usefulness where the creative work of art is
being used for a transformative purpose.” 619 F.3d at 315(quoting Bill Graham Archives, 448 F.3d at 612) (internal
quotation marks omitted). Thus, while Bouchat’s original drawing
22
is a creative work, the NFL’s transformative use lessens the
importance of the Flying B logo’s creativity. Consequently, this
factor is largely neutral.
The third factor is “the amount and substantiality of the
portion used in relation to the copyrighted work as a whole.” 17
U.S.C. § 107(3). The Flying B is reproduced in full in at least
some of its appearances in the videos, which “militat[es]
against a finding of fair use,” but “does not preclude” it.
Bouchat IV, 619 F.3d at 315 (quoting Sony Corp. of Am. v.
Universal City Studios, Inc., 464 U.S. 417, 449-50 (1984);
Sundeman v. Seajay Soc'y, Inc., 142 F.3d 194, 205 (4th Cir.
1998)) (internal quotation marks omitted). Ultimately, “the
extent of permissible copying varies with the purpose and
character of the use.” Sundeman, 142 F.3d at 205-06 (quoting
Campbell, 510 U.S. at 586-87) (internal quotation marks
omitted). Here, the NFL had no choice but to film the whole logo
in order to fulfill its “legitimate transformative purpose” of
creating the historical videos at issue. Bouchat IV, 619 F.3d at
315. Though the NFL has used Bouchat’s work in its entirety, the
transformativeness of the use and the character of Bouchat’s
work lead us to give very little weight to this factor. It would
be senseless to permit the NFL to use the Flying B logo for
factual, historical purposes, but permit it to show only a half,
or two-thirds of it.
23
The fourth factor is “the effect of the use upon the
potential market for or value of the copyrighted work.” 17
U.S.C. § 107(4). We are required to “determine whether the
defendants’ [use of the logo] would materially impair the
marketability of the work and whether it would act as a market
substitute for it.” Bond, 317 F.3d at 396. A transformative use
renders market substitution less likely and market harm more
difficult to infer. Campbell, 510 U.S. at 591. The transient and
fleeting use of the Flying B logo, as well as its use for its
factual, and not its expressive, content, leads us to conclude
that it serves a different purpose in the videos than it does
standing alone. As a result, the new, transformative use is
unlikely to supplant any market for the original. See Sundeman,
142 F.3d at 207.
D.
The four § 107 factors indicate that the NFL’s fleeting and
insubstantial use of the Flying B logo in these videos qualifies
as fair use. The first factor, 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.
Consequently, in the aggregate, the four factors point in favor
of a fair use finding.
24
Our analysis under § 107 is confirmed by the Supreme
Court’s explication of the underlying interests that inform
copyright law and its relationship to the First Amendment. While
copyright law rewards the owner, “[t]he sole interest of the
United States and the primary object in conferring the monopoly
lie in the general benefits derived by the public from the
labors of authors.” Sony Corp., 464 U.S. at 429 (internal
quotation marks omitted). As a result, Congress has attempted
over the years to balance the importance of encouraging authors
and inventors by granting them control over their work with
“society’s competing interest in the free flow of ideas,
information and commerce.” Id. at 429. Absent any protection for
fair use, subsequent writers and artists would be unable to
build and expand upon original works, frustrating the very aims
of copyright policy. Campbell, 510 U.S. at 575-76. For creation
itself is a cumulative process; those who come after will
inevitably make some modest use of the good labors of those who
came before. See Br. for Int’l Documentary Ass’n, Motion Picture
Ass’n of Am., Inc. & Film Indep. as Amici Curiae (“IDA Brief”)
at 9. After all, “it should not be forgotten that the Framers
intended copyright itself to be the engine of free expression.”
Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539,
558 (1985).
25
Fair use, then, is crucial to the exchange of opinions and
ideas. It protects filmmakers and documentarians from the
inevitable chilling effects of allowing an artist too much
control over the dissemination of his or her work for historical
purposes. Copyright law has the potential to constrict speech,
and fair use serves as a necessary “First Amendment safeguard[]”
against this danger. Eldred v. Ashcroft, 537 U.S. 186, 219
(2003). The case-by-case nature of the inquiry offers the
advantage of flexibility, but it also lacks predictability and
clarity, which is often an impediment to free expression. As a
result, fair use must give speakers some reasonable leeway at
the margins. As the Supreme Court has noted, the “considerable
latitude for scholarship and comment” secured by the fair use
doctrine protects the core value of free expression from
excessive litigation and undue restriction. Id. at 220 (internal
quotation marks omitted); see also id. at 219.
Top Ten: Draft Classes, Top Ten: Draft Busts, and Sound FX:
Ray Lewis share the qualities of other historical documentaries.
They feature three key components: archival footage, commentary,
and interviews. These ingredients are crucial to the creation of
any historically accurate film. They also align the videos with
the examples in § 107’s preamble: “criticism, comment, news
reporting, teaching . . . scholarship, or research.” 17 U.S.C.
§ 107. Were we to require those wishing to produce films and
26
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. It would force those wishing to create videos and
documentaries to receive approval and endorsement from their
subjects, who could “simply choose to prohibit unflattering or
disfavored depictions.” See IDA Brief at 5. 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 Bouchat’s fair use
position, would chill the very artistic creation that copyright
law attempts to nurture. See Sony Corp., 464 U.S. at 429.
The NFL wishes to create narratives about various aspects
of its history, including some that transpired between 1996 and
1998, when the Flying B logo represented the Ravens. These
videos have told new stories and feature all of the hallmarks of
documentary films. They also, of course, contain fleeting,
insubstantial images of the Flying B logo. But just as it would
27
have been a terrible shame to prevent Edward Hopper from
painting the “Esso” sign in his masterful Portrait of Orleans,
so too would it be a mistake to prevent the NFL from using the
Flying B logo to create new protected works. See E.S.S. Entm't
2000, Inc. v. Rock Star Videos, Inc., 547 F.3d 1095, 1100 (9th
Cir. 2008) (noting that under trademark law, the First Amendment
protects those uses that have artistic relevance). The NFL may
not arouse sympathies in the way that a revered artist does, but
the consequences of this case reach far beyond its facts.
Society’s interest in ensuring the creation of transformative
works incidentally utilizing copyrighted material is legitimate
no matter who the defendant may be.
IV.
Bouchat next challenges the incidental use of the Flying B
logo in certain historical displays located on the “Club Level”
of the Baltimore Ravens’ stadium. The facts of this particular
claim are detailed below. For the reasons that follow, we
conclude that this particular instance of display also qualifies
as a fair use.
A.
The club section of the Ravens’ stadium occupies the 200-
level concourse. The Club Level provides a host of amenities,
including, among other things, spacious seating, carpeted
28
floors, refuge from the elements, attractive décor, specialty
concessions, and enhanced customer service. The Club Level
accommodates over 8,000 people and is accessible only to those
who purchase Club Level tickets. These tickets are priced
between $175 and $355 per game.
The three displays challenged by Bouchat -- a timeline, a
highlight reel, and a significant plays exhibit -- are all
located on the Club Level. Each addresses a discrete subject
matter. Considered together, they cover an impressive span of
Baltimore football history. The Flying B logo plays an
incidental role in only a fraction of the historical depictions
featured in the displays. Overall, the exhibits document more
than one hundred years of history preceding the advent of the
Flying B logo and many significant historical events post-dating
it.
The timeline, which begins with the year 1881, covers those
individual years that illustrate important events in the
Baltimore football story. For instance, the portion of the
exhibit devoted to the year 1959, which surrounds the exit from
the women’s restroom, states in bold letters “TWO IN A ROW” and
includes as a caption “Baltimore repeats as NFL Champions in
Baltimore – Again Against Giants.” Historical photographs,
posters, and further descriptive text round out this component
29
of the exhibit, which is generally representative of other years
included in the display.
With respect to Bouchat’s challenge, the segment for a
single year -- 1996 -- features the heading “TOUCHDOWN
BALTIMORE” and the caption “NFL Returns to Baltimore.” To
illustrate this significant event in Baltimore sports history,
the display includes, among other things, blown-up reproductions
of the inaugural 1996 game-day program and ticket, each of which
necessarily bears the Flying B logo. No other year in the
extensive timeline display -- which covers the tail-end of the
19th century, the success of the Baltimore Colts, the tenure of
the Canadian Football League’s Baltimore Stallions, and the more
recent history associated with the Ravens -- includes even an
incidental depiction of the logo.
The highlight reel similarly includes illustrations of
significant moments in Ravens’ history. The reel features a
series of largely interconnected depictions, located near
concession areas, comprised of photographs accompanied by dates
and descriptive text. The Flying B logo appears incidentally in
several images. For instance, one exhibit includes a picture of
a former Ravens player, supplemented by the date “April 19,
1997” and a textual notation which reads, in part, “The Ravens
select Peter Boulware with their 1st pick in the 1997 draft (4th
overall).” In the photo, the Flying B logo is partially visible
30
on the side of Boulware’s helmet. As with the timeline, both the
highlight reel and the important plays exhibit -- discussed
below -- feature many significant historical depictions where
the logo does not appear at all.
The important plays exhibit is structurally analogous to
the highlight reel: it comprises photographs, dates, and textual
descriptions commemorating significant on-field achievements of
Ravens players. The photographs are exhibited independently
throughout the Club Level. Bouchat challenges only two
individual exhibits, including one that portrays a Ravens player
returning a punt. The text accompanying the photograph states,
in part: “Wide Receiver Jermaine Lewis ties an NFL Single-Game
Record with two punt return Touchdowns (89 yards and 66 yards).”
Given the angle of the photo, the Flying B logo is only
incompletely visible on the side of Lewis’ helmet. The second
exhibit, featuring a similar layout, depicts a Ravens
quarterback celebrating a touchdown; the Flying B logo also
appears on his helmet.
B.
The district court rejected Bouchat’s challenge to the Club
Level displays, finding each display of the Flying B justified
under the fair use doctrine. Its analysis rested in significant
part on this court’s decision in Bouchat IV, 619 F.3d 301, which
rejected an infringement challenge to a historical display
31
located in the lobby of the Ravens’ corporate headquarters. That
display, like the one at issue here, contained incidental
reproductions of the Flying B logo.
1.
As noted above, the first fair use factor -- “the purpose
and character of the use,” 17 U.S.C. § 107(1) -- can be reduced
to two sub-inquiries: whether the new use is transformative, and
to what degree it serves a commercial purpose. See Bouchat IV,
619 F.3d at 314. Each of these components is discussed below. As
will become apparent, much of our analysis regarding the content
of the documentaries discussed earlier is also applicable to
Bouchat’s display challenge.
The parties, in reliance upon Bouchat IV, exert significant
effort debating whether the challenged historical displays are
installed in a “museum-like setting.” 619 F.3d at 314. We need
not resolve this specific dispute, however, in order to conclude
that the three types of exhibits at issue here are
“transformative.” Campbell v. Acuff-Rose Music, Inc., 510 U.S.
569, 579 (1994). As noted, “[t]he use of a copyrighted work need
not alter or augment the work to be transformative in nature.
Rather, it can be transformative in function or purpose without
actually adding to the original work.” A.V. ex rel. Vanderhye v.
iParadigms, LLC, 562 F.3d 630, 639 (4th Cir. 2009).
32
Each of the three challenged Club Level displays is
intended to chronicle a significant aspect of Ravens’ history,
including important plays, specific player achievements, and
general historical events. Collectively, the displays provide a
multi-faceted portrait of the evolution of professional football
in Baltimore. The Flying B logo is included merely as an
incidental component of this broader historical narrative. See
SOFA Entm’t, Inc. v. Dodger Prods., 709 F.3d 1273, 1278 (9th
Cir. 2013). Its current function as a historical artifact
differs significantly from its original function as the team’s
logo, whereby it represented the Ravens brand, differentiated
Ravens players from members of opposing teams, and generally
served as the focal point of promotional efforts.
The logo as it is used in the Club Level displays no longer
serves these original purposes. Instead, its presence in the
various exhibits -- like in the documentaries -- is purely
descriptive and designed merely to preserve a specific aspect of
Ravens history. See Bouchat IV, 619 F.3d at 314; Elvis Presley
Enters., Inc. v. Passport Video, 349 F.3d 622, 629 (9th Cir.
2003) (noting, in the context of an Elvis documentary, that
defendant’s “use of many of the television clips is
transformative because they are cited as historical reference
points”), overruled on other grounds as stated in Flexible
Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989, 995
33
(9th Cir. 2011) (per curiam). It is the Raven Profile logo --
not the Flying B logo -- that now serves the purpose served by
the Flying B logo from 1996 to 1998.
Furthermore, the Flying B logo represents merely a
negligible element of the overall exhibition. For instance, the
historical timeline chronicles over 100 years of football in
Baltimore, but the Flying B logo was used for only three. The
Flying B logo is simply absent from large swaths of Baltimore
football, and indeed Ravens, history. The logo played no part,
for instance, in the decades the Baltimore Colts (and Hall-of-
Famer Johnny Unitas) played in the city. And the Ravens’ Super
Bowl championships were won after the team abandoned the Flying
B.
The insignificance of the Flying B logo as a feature of the
displays is relevant because “[t]he extent to which unlicensed
material is used in the challenged work can be a factor in
determining whether a [defendant’s] use of original materials
has been sufficiently transformative to constitute fair use.”
Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605,
611 (2d Cir. 2006); Campbell, 510 U.S. at 587. The logo’s
comparative insignificance as an element of the three displays
thus confirms their transformative quality, and militates in
favor of a finding of fair use.
34
2.
The first factor inquiry also involves determining whether
the allegedly fair use is commercial in nature. This
determination does not, however, require “a clear-cut choice
between two polar characterizations, ‘commercial’ and ‘non-
profit.’” Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1262 (2d
Cir. 1986). Instead, “[t]he commercial nature of a use is a
matter of degree, not an absolute.” Id. As noted above, it is
important not to over-emphasize this aspect of the inquiry when
the use is transformative. Campbell, 510 U.S. at 579.
The Bouchat IV court relied heavily on the fact that the
lobby housing the allegedly infringing images was open to the
general public free of charge. 619 F.3d at 314. Clearly, in that
case, the displays had at most an attenuated commercial purpose:
the lobby’s décor was not intended to induce a particular
purchase or to effectuate a commercial transaction, but rather
to stimulate general community support for the team. While the
patrons of the Club Level and the members of the public present
in the lobby of team headquarters are obviously not equivalent,
we do not believe the difference is dispositive. The Club Level
displays, like those in the lobby, produce what is essentially
an atmospheric effect. They are a negligible, fringe benefit of
club membership. The gourmet food, shelter from the elements,
and view of the game -- not some miniscule aspect of the wall
35
decor -- provide the primary motivators for purchasing a Club
Level ticket. See J.A. 194 (district court fact-finding) (“[T]he
static picture displays are not any meaningful part of the
incentive for a patron to buy a game ticket.”).
The commercial character of defendant’s use becomes even
more attenuated when one considers that the logo itself -- not
the exhibits in general -- technically represents the proper
focus of analysis. No one is putting down hundreds of dollars to
see the Flying B logo. The Ravens are “not gaining direct or
immediate commercial advantage from” any logo display at issue
here -- “i.e., [the team’s] profits, revenues, and overall
commercial performance [are] not tied to” the use. Bouchat IV,
619 F.3d at 314 (internal quotation marks omitted). This is
manifestly not a case where “the copier directly and exclusively
acquires conspicuous financial rewards from its use of the
copyrighted material.” Am. Geophysical Union, 60 F.3d at 923.
Furthermore, the use of a logo as an incidental element in
a historical exhibit is simply not the type of commercial use
frowned upon by § 107. If Baltimore’s football history is to be
accurately depicted, some incidental reproduction of the logo
would seem almost unavoidable. The mere use of a logo in a
profit-making venture, however, is quite different from its
commercial exploitation. Fair use, as its name suggests, is a
matter of degree. And “the degree to which the new user exploits
36
the copyright for commercial gain -- as opposed to incidental
use as part of a commercial enterprise” -- is what is
significant. See Elvis Presley Enters., Inc., 349 F.3d at 627.
Here, the displays include incidental depictions of the Flying B
logo merely to “enrich the presentation of the cultural history
of the [Ravens], not to exploit copyrighted artwork for
commercial gain.” Bill Graham Archives, 448 F.3d at 611.
Consequently, whether viewed from the standpoint of the Club
Level displays’ transformative character or from the standpoint
of whether they serve a commercial purpose, the first factor
cuts decidedly in favor of fair use.
3.
The remaining fair use criteria do not alter the
implications of the first. The second factor concerns “the
nature of the copyrighted work.” 17 U.S.C. § 107(2). “The law
generally recognizes a greater need to disseminate factual
works” than creative ones. Harper & Row, Publishers, Inc. v.
Nation Enters., 471 U.S. 539, 563 (1985). Here, the logo is
displayed for its historical significance rather than its
intrinsic creative worth. Bill Graham Archives, 448 F.3d at 612-
13. As in the documentary context, this factor is thus of no
assistance to Bouchat.
The third factor centers on “the amount and substantiality
of the portion used in relation to the copyrighted work as a
37
whole.” 17 U.S.C. § 107(3). If the second user reproduces only
the amount necessary to achieve a valid end, this factor will
favor neither party. Elvis Presley Enters., Inc., 349 F.3d at
630. Here, “in order to fulfill the legitimate transformative
purpose” of depicting important moments in Baltimore football
history, defendant had no choice but to include the Flying B
logo in its entirety as an incidental component of the
challenged exhibits. Bouchat IV, 619 F.3d at 315. It is hard to
see frankly how the use of one-third or two-thirds of the logo
is even practical or makes any sense. Thus, as in Bouchat IV, we
find this factor also of no help to plaintiff.
The fourth factor requires an assessment of “the effect of
the use upon the potential market for or value of the
copyrighted work.” 17 U.S.C. § 107(4). As noted above, we must
“determine whether the defendants’ [use of the logo] would
materially impair the marketability of the work and whether it
would act as a market substitute for it.” Bond v. Blum, 317 F.3d
385, 396 (4th Cir. 2003). When defendant’s use is
transformative, market substitution (and the resulting market
harm to plaintiff) is less likely. Campbell, 510 U.S. at 591.
Here, the incidental reproduction of the Flying B logo in the
Club Level historical displays serves a different market
function than does the logo standing alone. The new use -- which
is both transformative and only minimally commercial -- does not
38
supplant or substitute for the original. See Vanderhye, 562 F.3d
at 643; J.A. 196. Finally, we reiterate that although the
district court made no findings regarding the existence of a
licensing market for historical logos, J.A. 196, findings in
Bouchat’s favor on this point would be insufficient to overcome
the substantial weight of the first three factors. Once again,
given the absence of market data, we conclude that this factor
standing alone is neutral.
The criteria enumerated in § 107, in the aggregate, thus
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.
Fair use, as a crucial “First Amendment safeguard[],” is an
important tool in ensuring that an originator’s rights are not
expanded unjustifiably at the subsequent expense of free
expression. Eldred v. Ashcroft, 537 U.S. 186, 220 (2003). Our
holding that the displays constitute a fair use of the Flying B
logo preserves these fundamental First Amendment interests.
V.
Our rejection of Bouchat’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, however,
39
is simply not presented on the facts before us. The uses here
were not only transformative, but also -- take your pick --
fleeting, incidental, de minimis, innocuous. If these uses
failed to qualify as fair, a host of perfectly benign and
valuable expressive works would be subject to lawsuits. That in
turn would discourage the makers of all sorts of historical
documentaries and displays, and would deplete society’s fund of
informative speech. 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. Its judgment is in
all respects affirmed.
AFFIRMED
40