IP Law Daily, COPYRIGHT NEWS: High Court asked to look into transformative use analysis in fair use case, (Apr 17, 2014)

By Peter Reap, J.D., LL.M.

Graphic artist Frederick E. Bouchat has filed a petition for a writ of certiorari, asking the U.S. Supreme Court to review a decision of the Fourth Circuit holding that uses of a “Flying B” logo similar to a design created by Bouchat by the National Football League in documentary videos and by the Baltimore Ravens NFL team in pictures on stadium walls were non-infringing fair uses.

Background. Bouchat created a drawing in late 1995 that was referred to as the “Shield Drawing.” The NFL and the Ravens copied the Shield Drawing and created a logo for the team that was referred to as the “Flying B Logo.” The Ravens used the Flying B Logo as the team’s primary logo during the 1996, 1997, and 1998 seasons. After the 1998 season, the Ravens adopted a new logo and no longer featured the Flying B on their uniforms and merchandise.

Bouchat alleged that his copyright in the drawing on which the logo was based was infringed (1) by the NFL in documentary videos and (2) by the Ravens in pictures on stadium walls. The district court determined that these uses were fair and granted summary judgment in favor of the NFL and the Ravens. The Fourth Circuit affirmed, finding as it did so that the uses by the defendants were transformative uses.

Petition for review. The petitioner contends that the Fourth Circuit has “jettisoned” the transformative use analysis employed by other circuits (namely, the First, Second, Sixth, and Ninth Circuits). Instead, the Fourth Circuit in this case has given presumptive weight to the “purpose” of the appropriating work that expands fair use to permit the wholesale appropriation of pictorial works where the appropriating works are labeled, as in this case, as “historical” or “documentaries.”

In contrast to the Fourth Circuit, the decisions of the First, Second, Sixth, and Ninth Circuits hold that a finding that an appropriating use that has as its purpose one of the purposes in the preamble to Section 107, i.e., criticism, comment, news reporting, teaching, scholarship, or research, is not sufficient in itself to turn the first factor in the four-factor statutory fair use analysis in favor of fair use and does not end the inquiry. Instead, the first-factor analysis requires a separate analysis of whether the use of the copyrighted work is transformative, the petitioner argues.

The petition in Bouchat v. Baltimore Ravens Limited Partnership, Dkt. No. 13-1246, was filed April 11, 2014.

Attorneys: Howard J. Schulman (Schulman & Kaufman, LL) for Frederick E. Bouchat.

Companies: Baltimore Ravens Limited Partnership; NFL Enterprises LLC; NFL Network Services, Inc.; NFL Productions LLC; NFL Films; NFL Ventures L.P.

News: Copyright