Bouch at Appeal

7/28/2019 Bouch at Appeal

1/71

RECORD NOS. 12-2543(L), 12-2548

G i b s o nM o o r e A p p e l l a t e S e r v i c e s , L L C

4 2 1 E a s t F r a n k l i n S t r e e t S u i t e 2 3 0 R i c h m o n d , V A 2 3 2 1 9 8 0 4 - 2 4 9 - 7 7 7 0 w w w . g i b s o n m o o r e . n e t

I n T he

United States Court Of AppealsFor The Fourth Circuit

FREDERICK E. BOUCHAT,Plaintiff Appellant,

v.

BALTIMORE RAVENS LIMITED PARTNERSHIP,Defendant Appellee.

____________________________

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.

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLAND

AT BALTIMORE

___________

BRIEF OF APPELLANT___________

Howard J . SchulmanMarie J . IgnozziSCHULMAN &KAUFMAN,LLC100 North Charles Street, Suite 600Baltimore, Maryland 21201(410) 576-0400

Counsel for Appellant

Appeal: 12-2548 Doc: 30 Filed: 03/05/2013 Pg: 1 of 71


2/71

- 1-

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITDISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS

Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamuscase, except that a disclosure statement isnot required from the United States, from an indigentparty, or from a state or local government in a pro se case. In mandamus cases arising from acivil or bankruptcy action, all parties to the action in the district court are considered parties tothe mandamus case.

Corporate defendants in a criminal or post-conviction case and corporate amici curiae arerequired to file disclosure statements.

If counsel is not a registered ECF filer and does not intend to file documents other than therequired disclosure statement, counsel may file the disclosure statement in paper rather thanelectronic form. Counsel has a continuing duty to update this information.

No. __________ Caption: __________________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

______________________________________________________________________________(name of party/amicus)

______________________________________________________________________________

who is _______________________, makes the following disclosure:(appellant/appellee/amicus)

1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO

2. Does party/amicus have any parent corporations? YES NOIf yes, identify all parent corporations, including grandparent and great-grandparentcorporations:

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation orother publicly held entity? YES NOIf yes, identify all such owners:


12-2543 FrederickE. Bouchatv. Baltimore Ravens LimitedPartnership

FrederickE. Bouchat

Appellant



3/71

07/19/2012 - 2-SCC

4. Is there any other publicly held corporation or other publicly held entity that has a directfinancial interest in the outcome of the litigation (Local Rule 26.1(b))? YES NOIf yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question) YES NOIf yes, identify any publicly held member whose stock or equity value could be affectedsubstantially by the outcome of the proceeding or whose claims the trade association ispursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? YES NOIf yes, identify any trustee and the members of any creditors committee:

Signature: ____________________________________ Date: ___________________

Counsel for: __________________________________

CERTIFICATE OF SERVICE

**************************

I certify that on _________________ the foregoing document was served on all parties or theircounsel of record through the CM/ECF system if they are registered users or, if they are not, byserving a true and correct copy at the addresses listed below:

_______________________________ ________________________(signature) (date)


s/Howard J . Schulman 12/28/12

Frederick E. Bouchat

12/28/12

Robert L. Raskopf, Quinn Emanuel Urquhart&Sullivan, LLP51Madison Avenue, 22ndFloorNew York, New York 10010

andMarkD. Gately, HoganLovells US LLP 100International Drive, Suite2000Baltimore, Maryland21202Attorneys for Appellees




4/71

- 1-

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITDISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS

Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamuscase, except that a disclosure statement isnot required from the United States, from an indigentparty, or from a state or local government in a pro se case. In mandamus cases arising from acivil or bankruptcy action, all parties to the action in the district court are considered parties tothe mandamus case.

Corporate defendants in a criminal or post-conviction case and corporate amici curiae arerequired to file disclosure statements.

If counsel is not a registered ECF filer and does not intend to file documents other than therequired disclosure statement, counsel may file the disclosure statement in paper rather thanelectronic form. Counsel has a continuing duty to update this information.

No. __________ Caption: __________________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

______________________________________________________________________________(name of party/amicus)

______________________________________________________________________________

who is _______________________, makes the following disclosure:(appellant/appellee/amicus)

1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO

2. Does party/amicus have any parent corporations? YES NOIf yes, identify all parent corporations, including grandparent and great-grandparentcorporations:

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation orother publicly held entity? YES NOIf yes, identify all such owners:


12-2548 Frederick E. Bouchatv. NFL, Enterprises, LLC, etal.

FrederickE. Bouchat

Appellant



5/71

07/19/2012 - 2-SCC

4. Is there any other publicly held corporation or other publicly held entity that has a directfinancial interest in the outcome of the litigation (Local Rule 26.1(b))? YES NOIf yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question) YES NOIf yes, identify any publicly held member whose stock or equity value could be affectedsubstantially by the outcome of the proceeding or whose claims the trade association ispursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? YES NOIf yes, identify any trustee and the members of any creditors committee:

Signature: ____________________________________ Date: ___________________

Counsel for: __________________________________

CERTIFICATE OF SERVICE

**************************

I certify that on _________________ the foregoing document was served on all parties or theircounsel of record through the CM/ECF system if they are registered users or, if they are not, byserving a true and correct copy at the addresses listed below:

_______________________________ ________________________(signature) (date)



Frederick E. Bouchat

12/28/12

Robert L. Raskopf, Quinn Emanuel Urquhart&Sullivan, LLP51Madison Avenue, 22ndFloorNew York, New York 10010

andMarkD. Gately, HoganLovells US LLP 100International Drive, Suite2000Baltimore, Maryland21202Attorneys for Appellees




6/71

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................................................................... iii

JURISDICTIONAL STATEMENT .......................................................................... 1

STATEMENT OF THE ISSUES............................................................................... 2

STATEMENT OF THE CASE .................................................................................. 2

STATEMENT OF FACTS ........................................................................................ 4

A. NFL Network and nfl.com .................................................................... 6

B. The Club Level ...................................................................................... 8

C. Licensed retailers ................................................................................. 13

SUMMARY OF ARGUMENT ............................................................................... 14

ARGUMENT ........................................................................................................... 22

STANDARD OF REVIEW ........................................................................... 22

DISCUSSION OF THE ISSUES .................................................................. 23

I. IT IS NOT FAIR USE FOR THE NFL TO COMMERCIALLYEXPLOIT ON THE INTERNET AND THE NFL NETWORKITS ORIGINAL INFRINGEMENT OF THE FLYING B LOGO ...... 26

A. THE NFL IS BARRED BY ISSUE PRECLUSIONFROM ASSERTING FAIR USE FOR DISPLAYING

THE FLYING B LOGO IN GAME FILMS ON THEINTERNET AND THE NFL NETWORK OR,

ALTERNATIVELY, THIS CASE IS CONTROLLEDBY PRINCIPLES OF STARE DECISISAS THISCOURT HAS ALREADY DETERMINED THAT THENFLS COMMERCIAL EXPLOITATION OF ITSORIGINAL INFRINGEMENTS IN GAME FILMSFROM THE 1996, 1997 AND 1998 RAVENSSEASONS IS NOT FAIR USE .................................................. 26



7/71

ii

B. THE NFLS DISPLAY ON THE INTERNET AND THENFL NETWORK OF VIDEOS WITH THEINFRINGING LOGO IN GAME FILMS FROM THE1996, 1997 & 1998 RAVENS SEASONS IS NOT FAIRUSE BECAUSE IT IS A COMMERCIAL, NON-

TRANSFORMATIVE EXPLOITATION OF THENFLS ORIGINAL INFRINGEMENT .................................... 35

C. THE DISTRICT COURT FAILED TO ASSESS THENATURE AND EXTENT OF TRANSFORMATION, IFANY, AND WEIGH IT AGAINST THE DEGREE OFCOMMERCIALITY AND OTHER 107 FACTORS............ 39

D. DEFENDANTS ARE SERIAL INFRINGERS NOT

ENTITLED TO THE BENEFIT OF A GOOD FAITHFINDING AS A MATTER OF LAW ...................................... 40

II. IT IS NOT FAIR USE FOR THE BALTIMORE RAVENS TOCOMMERCIALLY EXPLOIT IN THE RAVENSFOOTBALL STADIUM CLUB LEVEL LOUNGE ITSORIGINAL INFRINGEMENT OF THE FLYING B LOGO ............ 42

A. M&T BANK STADIUM IS NOT A MUSEUM-LIKESETTING .................................................................................. 44

B. THE RAVENS DISPLAY OF THE INFRINGINGLOGO IN THE STADIUM CLUB LEVEL LOUNGE ISNOT FAIR USE BECAUSE IT IS A NON-

TRANSFORMATIVE, COMMERCIALEXPLOITATION OF THE NFLS AND RAVENSORIGINAL INFRINGEMENT .................................................. 47

CONCLUSION ........................................................................................................ 50

ADDENDUM

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF FILING AND SERVICE



8/71

iii

TABLE OF AUTHORITIES

Page(s)

Cases:

Allen v. McCurry,449 U.S. 90 (1980)......................................................................................... 27

Bill Graham Archives v. Dorling Kindersley Ltd.,448 F.3d 605 (2nd Cir. 2006) ............................................................ 16, 36, 37

Blanch v. Koons,467 F.3d 244 (2nd Cir. 2006) ......................................................... 19, 38, 47

Bleistein v. Donaldson Lithographing Co.,188 U.S. 239 (1903)................................................................................. 20, 49

Bond v. Blum,317 F.3d 385 (4th Cir. 2003) ................................................................... 22, 33

Bouchat v. Baltimore Ravens, Inc. (Bouchat I),241 F.3d 350 (4th Cir. 2000) ..................................................................... 5, 26

Bouchat v. Baltimore Ravens, Inc. (Bouchat II),241 F.3d 350 (4th Cir. 2000), appeal after remand,Bouchat v. Baltimore Ravens Football Club, Inc.,346 F.3d 514 (4th Cir. 2003) ........................................................................... 5

Bouchat v. Bon-Ton Dept. Stores, Inc. (Bouchat III),506 F.3d 315 (4th Cir. 2007) ..................................................................... 5, 26

Bouchat v. Baltimore Ravens Ltd. Pship (Bouchat IV),619 F.3d 301 (4th Cir. 2010) ..................................................................passim

Bouchat v. Baltimore Ravens,2011 WL 5445947 (D. Md. 2011) ................................................................... 6

Campbell v. Acuff-Rose Music, Inc.,510 U.S. 569 (1994)................................................................................passim



9/71

iv

Castle Rock Entmt, Inc. v. Carol Publg Group,150 F.3d 132 (2nd Cir. 1998) ........................................................................... 32

Columbia Pictures Indus., Inc. v. Redd Horne, Inc.,749 F.2d 154 (3rd Cir. 1984) ......................................................................... 23

Folsom v. Marsh,9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4,901) (Story, J.) ............................. 32

Haavistola v. Cmty. Fire Co. of Rising Sun, Inc.,6 F.3d 211 (4th Cir. 1993) ............................................................................. 22

Harper & Row, Publishers, Inc. v. Nation Enterprises,471 U.S. 539 (1985)..................................................................... 22, 23, 50, 51

Herbert v. The Shanley Co.,242 U.S. 591 (1917)..................................................................... 20, 42, 48, 49

Hutto v. Davis,454 U.S. 370 (1982)....................................................................................... 27

In re Microsoft Corp. Antitrust Litig.,355 F.3d 322 (4th Cir. 2004) ................................................................... 17, 27

Iowa State Univ. Research Found., Inc. v. American Broad. Cos., Inc.,621 F.2d 57 (2nd Cir. 1980) .......................................................................... 15

Leibovitz v. Paramount Pictures Corp.,137 F.3d 109 (2nd Cir. 1998) ..................................................................... 38

Los Angeles News Serv. v. CBS Broad., Inc.,305 F.3d 924, amended on other grounds,313 F.3d 1093 (9th Cir. 2002) ....................................................................... 16

Mathews v. United States,485 U.S. 58 (1988)................................................................................... 18, 27

Montana v. United States,440 U.S. 147 (1979)....................................................................................... 27



10/71

v

Morrison v. Nissan Co.,601 F.2d 139 (4th Cir. 1979) ...................................................................... 41

Nash County Bd. of Ed. v. Biltmore Co.,640 F.2d 484 (4th Cir. 1981) ......................................................................... 27

Nunez v. Caribbean Intl News Corp.,235 F.3d 18 (1st Cir. 2000) ........................................................................ 36

Perfect 10, Inc. v. Amazon.com, Inc.,508 F.3d 1146 (9th Cir. 2007) .................................................................... 32, 37

Sony Corp. of America v. Universal City Studios, Inc.,464 U.S. 417 (1984)........................................................................... 16, 20, 49

Sundeman v. Seajay Socy, Inc.,142 F.3d 194 (4th Cir. 1998) .....................................................................passim

Taniguchi v. Kan Pacific Saipan, Ltd.,___ U.S. ____, 132 S. Ct. 1997 (2012) ......................................................... 31

United States v. Tatum,943 F.2d 370 (4th Cir. 1991) ......................................................................... 27

Vanderhye v. iParadigms, LLC,562 F.3d 630 (4th Cir. 2009) ...................................................................... 37

Weinberger v. Tucker,510 F.3d 486 (4th Cir. 2007) ......................................................................... 27

Statutes:

17 U.S.C. 101 ........................................................................................................ 24

17 U.S.C. 106 ........................................................................................ 15, 23, 24

17 U.S.C. 106(1) ................................................................................................... 25

17 U.S.C. 106(3) ................................................................................................... 25

17 U.S.C. 106(5) ................................................................................................... 25



11/71

vi

17 U.S.C. 107 .............................................................................................passim

17 U.S.C. 113 ........................................................................................................ 25

17 U.S.C. 113(1) ......................................................................................... 15, 25

17 U.S.C. 113(a) ................................................................................................... 25

17 U.S.C. 501 .......................................................................................................... 1

17 U.S.C. 501(a) .......................................................................................... 15, 24

17 U.S.C. 502 .......................................................................................................... 1

17 U.S.C. 503 .......................................................................................................... 1

17 U.S.C. 504 .......................................................................................................... 1

28 U.S.C. 1291 ............................................................................................................ 1

28 U.S.C. 1338(a) ................................................................................................... 1

Other Authorities:

H.R. Rep. No. 94-1476 (1976) ..........................................................................passim

E. J ohnson,The NFL, Intellectual Property,and the Conquest Of Sports Media,

86 N.D.L.REV. 759 (2010) ..................................................................... 21, 41

Pierre N. Leval, Toward a Fair Use Standard,103 Harv. L. Rev. 1105 (1990) ......................................................................... 32

2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, 8.01[A] (2004) ............................................................................................ 23

Oxford English Dictionary,3rd Ed.,OXFORDUNIVERSITY PRESS(1989) .................................................... 31

Webster New International Dictionary, 3rd Ed. ................................................ 31, 34



12/71

1

J URISDICTIONAL STATEMENT

Jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1291. On January

2, 2013, the Court consolidated both of these cases for purposes of appeal. These are

consolidated appeals from final judgments that disposed of all of the parties claims.

Case No. 12-2548

On May 17, 2012, Frederick E. Bouchat filed, in the United States District

Court for the District of Maryland (Northern Division) (Civil Action No. 1:12-cv-

01495-MJG), an action for copyright infringement under the copyright laws of the

United States, 17 U.S.C. 501-504, and invoked jurisdiction pursuant to 28

U.S.C. 1338(a). On November 19, 2012, the District Court entered a final

judgment in favor of Defendants against Plaintiff. (JA 217). An appeal was noted

to this Court on December 14, 2012. (JA 219).

Case No. 12-2543(L )

On June 27, 2012, Frederick E. Bouchat filed, in the United States District

Court for the District of Maryland (Northern Division) (Civil Action No. 1:12-cv-

01905-MJG), an action for copyright infringement under the copyright laws of

the United States, 17 U.S.C. 501-504, and invoked jurisdiction pursuant to 28

U.S.C. 1338(a). (JA 10). On November 19, 2012, the District Court entered a

final judgment in favor of Defendants against Plaintiff. (JA 214). An appeal was

noted to this Court on December 14, 2012. (JA 218).



13/71

2

STATEMENT OF THE ISSUES

I. IS IT FAIR USE FOR THE NFL TO COMMERCIALLY EXPLOITON THE INTERNET AND NFL NETWORK ITS ORIGINALINFRINGEMENT OF THE FLYING B LOGO?

II. IS IT FAIR USE FOR THE BALTIMORE RAVENS TOCOMMERCIALLY EXPLOIT IN THE RAVENS FOOTBALLSTADIUM CLUB LEVEL LOUNGE ITS ORIGINALINFRINGEMENT OF THE FLYING B LOGO?

STATEMENT OF THE CASE

In Case No. 12-2548 (1:12-cv-01495-MJG), Plaintiff Frederick E. Bouchat

filed suit on May 17, 2012 against Defendants NFL Enterprises, LLC, NFL

Network Services, Inc. and NFL Productions, LLC, d/b/a NFL Films, a subsidiary

of NFL Ventures, L.P., for willful, continuing infringements of his copyright after

they were previously adjudicated infringers of his copyright. He alleged that the

Defendants were publicly displaying and infringing upon his copyright by the use

of film segments appearing on nfl.com and on NFL Network. (JA 14-23). The

District Court, however, entered a Memorandum and Order granting summary

judgment on November 19, 2012 on the ground of fair use. (JA 212).

The District Court issued a written opinion (Decision Re: Fair Use Issues),

which it filed in these two cases consolidated on appeal, as well as a third

involving EA Sports. (JA 176-211). The parties filed identical motion papers and

evidentiary submissions in each of these two cases. Both consolidated cases were

decided on the same evidentiary record.



14/71

3

The District Court found, as a matter of law, that the NFLs use of the

infringing logo, in the video segments on nfl.com, surrounded by advertisements

by such marketers as McDonalds, Google Chrome, Van Heusen, GMC and

Gatorade, was fair use. The District Court also found that the same videos

televised on NFL Network were fair use. (JA 199-203). The District Court

reasoned that the videos were documentaries portraying history in biographical

and comparative presentations. (JA 200). This transformative use outweighed

all other factors under 17 U.S.C. 107, the fair use statute. (JA 200-02). The

District Court also found that the Ravens, while the originator of the

infringement, acted in good faith in believing that these uses were non-infringing.

(JA 201).

In Case No. 12-2543(L) (1:12-cv-01905-MJG), Plaintiff Frederick E.

Bouchat filed suit on June 27, 2012 against the Baltimore Ravens Limited

Partnership alleging that the Defendant was infringing upon his copyright.

Plaintiff alleged that Defendant was prominently displaying the infringing

logo on the M&T Bank Stadium Club Level during football games, and other

events hosted at M&T Bank Stadium, for persons paying the price of admission.

The District Court likewise granted summary judgment in favor of the Baltimore

Ravens on the ground of fair use. (JA 215). The District Court reasoned that

the Ravens display of the logo throughout the football stadiums indoor



15/71

4

Club Level Lounge as dcor for its bar and food service stations that cater to

its high-paying, premier clientele was consistent with a display in a museum

and that there was no direct or immediate commercial advantage from the

displays. (JA 193-95). In view of what it termed the substantial transformative

use, the District Court concluded that the use in the Club Level Lounge was

fair under the other 107 factors. (JA 194-96). The District Court also found

that the Ravens, while the originator of the infringement, acted in good faith

in believing that the uses in the Club Level Lounge were non-infringing. (JA

195).

STATEMENT OF FACTS

On approximately April 1, 1996, Bouchat sent the design, that he created as

a logo for the new Baltimore Ravens football team, to John Moag, Chairman of the

Maryland Stadium Authority, who was then sharing offices with Baltimore Ravens

personnel, including David Modell, the team vice-president who headed the

Ravens collaboration with National Football League Properties (NFLP)

concerning the development of the Ravens logo. Bouchat signed the design which

he sent to Moag and included the copyright symbol and the December 5, 1995

date of creation. Bouchat requested a letter of recognition and an autographed

helmet if the Ravens used the logo he designed but never heard anything until the

Ravens announced their logo on June 5, 1996. At that time, Bouchat, and other



16/71

5

personnel at the Maryland Insurance Administration where he worked, recognized

that it was Bouchats design because the logos were virtually identical. Bouchat v.

Baltimore Ravens, Inc., 241 F.3d 350, 352-55 (4th Cir. 2000) (Bouchat I)

(liability appeal).

The Ravens and other NFL entities displayed and distributed the logo for the

1996, 1997 and 1998 football seasons, including on the football field turf, banners,

players helmets, merchandise and tickets. The logo also appears in the video

footage of the 1996, 1997 and 1998 Ravens films. Bouchat v. Baltimore Ravens

Ltd. Pship, 619 F.3d 301, 305 (4th Cir. 2010) (Bouchat IV). Each Defendant in

these cases or its privies was adjudicated an infringer in 2002 and 2003. See

Bouchat I, 241 F.3d 350, appeal after remand, Bouchat v. Baltimore Ravens

Football Club, Inc. (Bouchat II), 346 F.3d 514 (4th Cir. 2003); see alsoBouchat

v. Bon-Ton Dept. Stores, Inc. (Bouchat III), 506 F.3d 315 (4th Cir. 2007).

Notwithstanding being adjudicated infringers and their public statements

that they would cease using the logo, the Baltimore Ravens and NFL Films

continued to make commercial use of the Flying B logo. The Ravens displayed the

logo in videos on its Jumbotron video screen during home games, and NFL Films

sold video footage to the public in the form of half-hour long Ravens yearly

highlight films of the 1996, 1997 and 1998 seasons. For these uses, the Ravens and

NFL Films were again adjudicated infringers. Bouchat IV, 619 F.3d at 313. Not



17/71

6

daunted, the NFL and Baltimore Ravens continue to use the logo without

Bouchats permission and have refused to cease using it. SeeBouchat v. Baltimore

Ravens, 2011 WL 5445947 (D. Md.).

A. NFL Network and nfl.com

Appellee NFL Enterprises, LLC is the owner and operator of a website

known as nfl.com. (JA 16). NFL Enterprises, LLC and NFL Network are the

owners and operators of a television programming service and channel known as

the NFL Network. (JA 18, 47). NFL Network offers various regular programs

that have individual episodes, one is theTop Ten series and another is its Sound FX

program. (JA 47-48; 198-99).

Top Ten is a television series that first aired on the NFL Network in 2007.

(JA 47). Each episode counts down the top ten items directly related to a particular

subject. (JA 47). Approximately 119 episodes ofTop Tenhave aired on NFL

Network. (JA 48). One episode is known as Top Ten: Draft Classes which

provides segments on the all-time, ten best NFL draft classes. (JA 48, 198). This

episode features a four-minute segment reflecting the Ravens inaugural 1996 draft

class, which includes Ray Lewis, Jonathan Ogden and Jermaine Lewis. (JA 16-18,

48, 148, 198). It was televised on the NFL Network on April 14, 2012 and on an

unknown number of occasions prior and subsequent to April 14, 2012. (JA 18,

148). During the telecast, various portions of highlights from the 1996 Ravens



18/71

7

football season were shown in which the infringing logo is displayed and observed

on the players helmets. (JA 18, 134, 148, 198). It also included a clip in which the

Ravens previous home stadium, Memorial Stadium, was shown, and the

copyrighted logo design was displayed on the stadium entrance. (JA 134).

This episode was also available to the public on nfl.com, in a video known

as Top Ten Draft Classes: 1996 Baltimore Ravens. (JA 16-17, 51, 134, 142-43).

When accessed on nfl.com, the shows online video includes paid advertisements

from such advertisers as, among others, McDonalds, Google Chrome, Van

Heusen, GMC and Gatorade. (JA 134). Also, when the video Top Ten Draft

Classes: 1996 Baltimore Ravens begins to play, an advertisement appears for the

movieThe Avengersand for Pizza Hut, prior to the segment as a lead-in to the

program. (JA 134).

Another episode ofTop Ten is the Top Ten Draft Busts, which has aired

on at least two occasions since April 22, 2012 and was televised prior to that date.

(JA 19, 148). In this episode, one of the segments featured a former St. Louis Ram,

Lawrence Phillips, who was a first-round draft pick in 1996. (JA 48, 198). The

four-minute segment on Phillips concludes with a highlight clip in which the

Ravens defense tackles Phillips, and the Flying B logo is depicted on the

Ravens players helmets. (JA 48, 198).



19/71

8

The NFL Network has another television series known as Sound FX, which

first aired in 2009. (JA 48). Each episode ofSound FX consists of footage of the

sights and sounds of football through players recorded via a microphone, e.g., the

sights and sounds of players hits, grunts, yells, exhortations and other game

sounds. (JA 48, 199). An episode, known as Sound FX: Ray Lewis, aired on

May 23, 2012 on NFL Network and first aired on or about September 21, 2010.

(JA 20-21, 147-48). This episode contains sounds of Ray Lewis during the game

without outside commentary and virtually no voice-over and includes clips and

highlights of Lewis in various Ravens football games during the 1996, 1997 or

1998 seasons. (JA 20, 199). In these clips, the Flying B logo is depicted on the

players helmets. (JA 148, 199). This particular show was also viewed on nfl.com

and was available on other Internet television hosts, such as hulu.com, through a

licensing agreement issued by NFL Enterprises. (JA 21, 54, 198).

B. The Club Level

The Baltimore Ravens present home stadium, M&T Bank Stadium, located

in Baltimore, Maryland, contains three main levels of stadium seating for the

general public.1

The first concourse, the 100 level, and the top concourse, the 500

level, are the two general seating areas for fans. (JA 146, 155). Prices for

1 There are also two levels that contain 128 suites, with each suiteaccommodating approximately 20-24 people. (JA 151). Presumably, those withaccess to the suites also have access to the Club Level concourse.



20/71

9

individual tickets in these sections start at $95 and $60 per seat, respectively. (JA

146; 155). The Baltimore Ravens website advertises that the Club Level decor

features an historical perspective of football in Baltimore highlighting great games,

teams and players from the areas rich football history. (JA 151).

The second concourse of the stadium, the 200 level, generally known as the

Club Level, provides premier seating for patrons outside in the stadium and a

club lounge inside a closed, carpeted concourse. (JA 151). Individual tickets in

this section start at $175 and increase to $355. (JA 146, 155). The enclosed

concourse provides luxury seating, as well as other amenities including protection

from the elements and cold weather and the challenged displays in this case. (JA

135-36, 146, 151, 155). Potentially, 8,196 people can sit in the Club Level, which

is private and prohibits access and entry from those fans without tickets to sit in the

Club Level. (JA 136, 139, 146, 151). Club Level seating is extra-wide to provide

greater comfort. A Club Level ticket also comes with VIP parking. (JA 151).

The Club Level Lounge provides an overall, upscale atmosphere for the

Ravens exclusive clientele. It has a number of fully-staffed bars and concession

areas located through its circular concourse. (JA 135, 146, 151). Television

monitors are located throughout, including above the bar areas, to allow fans to

watch the game inside. (JA 91-95, 97-99, 103, 135-36). Large leather sofas and

chairs offer comfortable lounge seating; large tables are also available for people to



21/71

10

comfortably consume their premier quality food and drink. (JA 108, 136, 151). By

contrast, the 100 and 500 levels neither offer shelter from the elements nor provide

lounge seating or tables for ease of consumption. (JA 146).

The Club Level also provides exclusive, customized service and amenities to

its Personal Seat License (PSL)2 owners and patrons, not available to those in

other areas of the stadium. (JA 135-36, 146, 151, 161-64). The Ravens offer

Private Club Level Customer Service, including a direct phone line and email

address, for PSL owners. (JA 162). The Club Level also provides personal Club

Level Concierges and Supervisors to assist the stadiums premier patrons in

mak[ing] your game day experience on the Club Level enjoyable, from locating

your favorite food to providing directions. (JA 162). As an additional courtesy to

their premier fans, the Club Level allows PSL owners to add value to the ticket

itself by making the barcode on the ticket work like a credit card. (JA 164).

Essentially, the PSL owner pre-pays the cost of food and beverage to allow owners

to entertain clients by adding a little extra to their game day experience. (JA

164). Club Level PSL owners also receive a 20% discount for merchandise

purchased on game day or online. (JA 164).

2 A Personal Seat License, or PSL, is a privately-owned license to anindividual seat, purchased for a fee, within the Ravens stadium which allows theowner to effectively own season tickets to that same seat every year.



22/71

11

Another means of selling the upscale atmosphere is through the quality of

concessions, which is substantially higher in the Club Level than that which is

available in the 100 and 500 levels. Concessions and beverages are also more

expensive in the Club Level. (JA 136, 146). The Club Level offers fully-stocked

bars throughout its concourse, which serve beer, wine, cocktails and hard liquor to

its patrons. (JA 146, 151). It also contains a number of Specialty Food Stations

where one may purchase sandwiches of prime rib carved to order, deluxe burgers

and Maryland-theme fare, including crab cakes. (JA 136, 164). In 2012, the Club

Level opened two new specialty-food stations, a Steak and Chicken cheese steak

station and a Nutty Butty Bavarian Ice Cream station to purchase quality desserts.

(JA 164).

Unlike the other areas of the stadium which are merely concrete, the Club

Level interior is carpeted and decorated with depictions of Baltimore sports. (JA

73, 136-37, 151, 189-92). As advertised on its website, Club Level dcor

highlighting great games, teams and players features enlarged photographs

throughout the entire Club Level concourse depicting the Flying B logo. (JA

151).

A depiction representing the year 1996 in Baltimore sports is locatedon the wall outside a womens restroom. The 1996 depiction

prominently displays the old Memorial Stadium with an enlarged



23/71

12

game ticket to the Baltimore Ravens inaugural game against the

Oakland Raiders on September 1, 1996. Printed in the middle of that

enlarged ticket is the Flying B logo. (JA 87-89, 117-118, 189).

A photograph of Vinny Testaverde, the Baltimore Ravens firststarting quarterback, prominently displays his helmet with the Flying

B logo. (JA 112, 125, 137, 192).

Jermaine Lewis, former special teams player, is photographedwearing the helmet with the Flying B logo displayed. (JA 114, 126,

137, 140, 192). In addition to the wall dcor, enlarged photographs are

also displayed above the bars in the Club Level concourse that depict

the Flying B logo in what is referred to as the Highlight Reel. (JA

73, 91-95, 97-106, 190).

A photograph of Jonathan Ogden, former Ravens left tackle, taken atthe time he was drafted in 1996, depicts Mr. Ogden sitting next to the

Ravens former team owner Art Modell wearing a white shirt with the

Flying B logo on it. (JA 99, 100, 120, 191).

A photograph of Peter Boulware, former Ravens linebacker, depictsMr. Boulware on the field, wearing his full uniform and helmet which

prominently displays the Flying B logo. (JA 101-02, 121, 191).



24/71

13

Above one bar is a photograph, noted to be on June 5, 1996, whichportrays three Ravens players unveiling the team uniforms and new

Ravens logo while holding their helmets which prominently display

the Flying B logo. (JA 98, 119, 141, 190).

A photograph of Art Modell sitting with Brian Billick, former headcoach, prominently displays the team helmet and the Flying B logo.

(JA 105, 123, 191, 149).

A photograph of Vinny Testaverde, the same as the photographlocated on the walls of the Club Level Concourse, which again

displays the helmet and Flying B logo. (JA 106, 124).

A photograph of the new Ravens home stadium, now known as M&TBank Stadium

3, in 1998 which depicts an image of the field and

contains the Flying B logo in the end zone. (JA 104, 122, 191).

C. Licensed retailers

The NFLs and/or the Baltimore Ravens licensed, authorized retailers sell

merchandise depicting the Flying B logo. Replayphotos.com, which holds itself

out as the official Baltimore Ravens store, offers team photographs and other

artwork for sale to the public. (JA 148). On replayphotos.com, a person may

3 When the stadium opened in 1998, it was known as PSI Net Stadium. Itwas later renamed.



25/71

14

purchase team photographs of the 1996 and 1997 Baltimore Ravens. (JA 148, 152-

53). The 1996 team photo displays the players and coaching staff, with two team

helmets facing a football located on the ground, in the front center of the

photograph. (JA 152). The helmet prominently displays the Flying B logo. (JA

152). The 1997 team photo also displays the players and coaching staff. (JA 153).

The coach in the front center of the photograph is holding a football on his lap. (JA

153). Coaches to the left and right of him are each holding a team helmet that

prominently displays the Flying B logo. (JA 153). EA Sports, an NFL

Properties licensee, used the Flying B logo in the Madden NFL 2010, 2011 and

2012 video games to give the user an option to select a retro throwback helmet.

(JA 149, 203-204.)

SUMMARY OF ARGUMENT

Defendants are serial, recidivist infringers who continue to use Plaintiffs

copyrighted work without his permission, and have enlisted the courts to provide

them refuge from the free market in the form of fair use. Defendants refuse to

cease and desist their use of the infringing logo and continue to commercially

exploit Plaintiffs intellectual property for their own financial gain under the guise

of fair use. Defendants continue to use Bouchats intellectual property without a

license and without his permission and willfully continue to commercially exploit

his copyrighted work. Thus, this litigation ensued.



26/71

15

Defendants previously exploited the copyrighted work as part of a mass

infringement, and now they want to use the copyrighted work in perpetuity without

paying for that right. As previously adjudicated infringers of the copyrighted work

in question, Defendants have invoked the equitable doctrine of fair use, but with

unclean hands. Once again, masquerading as historians and museum curators

despite previously being adjudicated as recidivist infringers, Defendants in these

cases would have the Court grant them a perpetual license and sanitize their prior

infringements. The fair use doctrine, however, is not a license for corporate theft.

Iowa State Univ. Research Found., Inc. v. American Broad. Cos., Inc., 621 F.2d

57, 61 (2nd Cir. 1980).

The appropriating game films, photographs, game-day magazine and game

ticket at issue came into existence between 1996 and 1998, and the appropriated

logo was used in the identical way in which the logo was used in 1996-1998. It is

undisputed that Defendants violated Bouchats copyright from 1996 through

1999, when they displayed and distributed the very same appropriating works that

are at issue in this case. Bouchat has exclusive rights under 17 U.S.C. 106 &

113(1) to display, distribute and reproduce his logo design, and Defendants

display, distribution and reproduction of it violates his copyright by virtue of 17

U.S.C. 501(a) (Add 5), unless the use of his work is subject to the fair use

exception set forth in 17 U.S.C. 107 (Add 3). In assessing this affirmative



27/71

16

defense, a court is required to determine whether there is fair use based on the

four mandatory, non-exclusive factors set forth in 107. Section 107 provides, in

pertinent part:

In determining whether the use made of a work in anyparticular case is a fair use the factors to be consideredshall include--(1) the purpose and character of the use [ofthe copyrighted work]. .

Id.; seealsoSundeman v. Seajay Socy, Inc., 142 F.3d 194, 202 (4th Cir. 1998) (The

first factor to be considered is the purpose and character of the challenged use .).

Most important to the courts analysis of the first factor is the

transformative nature of the work. Bill Graham Archives v. Dorling Kindersley

Ltd., 448 F.3d 605, 608 (2nd Cir. 2006). Transformative works lie at the heart of

the fair use doctrines guarantee of breathing space within the confines of

copyright. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (citing

Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 478-80

(1984) (Blackmun, J., dissenting). Thus, the most important component of the

inquiry into the purpose and character of the use is whether the use adds

something new, with a further purpose or different character, altering the first with

new expression, meaning, or message thereby making it transformative. Los

Angeles News Serv. v. CBS Broad., Inc., 305 F.3d 924, 938 (quoting Campbell,

510 U.S. at 579), amended on other grounds, 313 F.3d 1093 (9th Cir. 2002);

accord Sundeman, 142 F.3d at 202 (quoting Campbell, 510 U.S. at 578-79).



28/71

17

In Bouchat IV, the Court held that the NFLs and the Ravens commercial

exploitation of their original infringement of the copyrighted work was not fair use.

Id. at 309-13. This Court rejected the District Courts conclusion that the use of

highlight films from the 1996, 1997 and 1998 Ravens seasons was primarily

historic and held that the use was not transformative. Id. at 309, 311. While the

videos add to the historical record of Ravens play, the use of the logo in those

films simply fulfilled its purpose of identifying the team. Id., at 309. The

football-team logo was still used as it was before, a football-team logo. Id. The

Court concluded that [t]he core commercial purpose of the highlight films does

not align with the preambles protected purposes of comment, news reporting,

research, and the like. Id., at 308.

The District Court employed virtually the same rationale in the instant cases

as was previously rejected and reversed in Bouchat IV. This Court in Bouchat IV

specifically rejected that the dramatic editing, music, narration and historical

purpose transformed the use of the infringing logo in highlight game films. Id., at

309. There is no material difference between Defendants use of highlight films in

Bouchat IV and in these cases. Defendants are thus barred by the principle of issue

preclusion from re-litigating the issue of whether commercial exploitation of the

game films is fair use. In re Microsoft Corp. Antitrust Litig., 355 F.3d 322, 326

(4th Cir. 2004). Alternatively, to the extent that issue preclusion is not applicable,



29/71

18

the holding in Bouchat IV controls the issue, under the principle ofstare decisis.

Mathews v. United States, 485 U.S. 58, 66-67 (1988) (bow[ing] to stare decisis)

(Brennan, J., concurring). Furthermore, these television programs are not

transformative and do not alter or edit the infringing work, but rather they directly

display the Flying B logo in the same manner as the originating, infringing work.

The programs each use film highlights taken from football games in which the logo

identifies the Baltimore Ravens.

The Court, in Bouchat IV, held that the use of the copyrighted work in [t]he

lobby of the Ravens headquarters [which] has an area that is dedicated to the

history of the team for which no fee was charged transformed the purpose of the

use because the display was non-commercial use in a museum setting. Id. at 313-

14. Most important, the use of the logo in a museum-like setting adds something

new to its original purpose as a symbol identifying the Ravens. Id., at 314.

[U]nlike in the highlight films, there is no clear-cut commercial purpose behind

the use of the logo in the Ravens lobby. The lobby is open to the public, free of

charge. Id. Contrasting the display in the lobby to the highlight films, the Court

emphasized that the character of the use in the highlight films is particularly

indefensible because the Ravens and the NFL are exploiting to their commercial

advantage the original infringements. Id., at 314.



30/71

19

Construing the record in a light most favorable to Plaintiff, the Ravens

use of the infringing logo in the Stadium Club Level Lounge is not consistent

with a museum, but rather is consistent with Circus Maximus or Oktoberfest.

Unlike the little area of the lobby of the Ravens headquarters building dedicated

to the history of football in Baltimore, the Club Level Lounge spans the interior

of the entire stadiums second level, and the Ravens use the logo throughout the

indoor Club Level Lounge as dcor and wall covering for its bar and food

service stations that cater to its high-paying, premiere clientele. (JA 135-36, 146-

47). Without a doubt, this is no museum-like setting, but only a new way to

exploit the prior infringements. Blanch v. Koons, 467 F.3d 244, 251-54 (2nd Cir.

2006) (We have declined to find a transformative use when the defendant has

done no more than find a new way to exploit the creative virtues of the original

work).

In most of the photographs displayed in the Club Level Lounge, similar to

the yearly highlight films, [a] football player wearing a helmet with the Flying B

logo is readily identified as a football player for the Ravens. Bouchat IV, 619

F.3d at 309. In other photographs in the Club Level Lounge, [t]he stadium field

painted with the Flying B logo identifies it as the home field of the Ravens

football team. Id. The logo on the ticket in the football collage identifies that



31/71

20

ticket with the Ravens, as it did in 1996. Similarly, the written commentary found

amongst the photographs reflects the verbal commentary in the yearly highlight

films. Either way, the logo is still being used as a logo. Id.

Construing the record in a light most favorable to Plaintiff, the Defendants

are commercially exploiting the original infringement in the Club Level Lounge, as

an integral part of its game day revenue engine and entertainment package for its

well-heeled patrons, as befits the great showmen and entertainers that the NFL is.

The District Courts conclusion that the lounge displays are not part of the

entertainment package for which the Club Level patrons pay for admission appears

to not only be based on a construction of the record in a light most favorable to the

moving party, but is incorrect as a matter of law under well-established and long-

standing precedent. Bouchat IV, 619 F.3d at 308; Herbert v. The Shanley Co., 242

U.S. 591, 594-95 (1917); Bleistein v. Donaldson Lithographing Co., 188 U.S. 239,

251-52 (1903); accord Campbell, 510 U.S. at 582-83 (quoting Bleistein); cf.Sony

Corp., 464 U.S. at 446-47 n.28. The previously adjudicated infringers core

commercial purpose in exploiting their prior infringement does not align with the

protected purposes of 107. SeeBouchat IV, 619 F.3d at 308, 311, 314.

Construing the record in a light most favorable to Bouchat as the non-

moving party, the District Court's conclusion that the NFL acted in good faith is

unwarranted based on the record in this case. (JA 201). The Ravens, at this early



32/71

21

stage of the case and as proponents of the affirmative defense of fair use, have the

burden of production of evidence on this key equitable fact, particularly given this

Courts finding that it was not an innocent infringer. See id., at 311, 314. To the

contrary, the record suggests that the commercial video displays are part of an

emerging pattern that the Baltimore Ravens and its NFL partners are commercially

exploiting the infringing logo in the sale of team photographs, the Madden NFL

video games and NFL highlight films, a pattern from which a reasonable person

could reasonably infer bad faith, particularly given the prior adjudications of

infringement. The NFLs resurgent commercial exploitation of its prior

adjudicated infringements suggests a bad faith plan to incrementally increase

future use of the infringing logo and do an end run around the prior finding of

infringement. E. Johnson,The NFL, Intellectual Property, and the Conquest Of

Sports Media, 86 N.D.L.REV. 759, 770-73 (2010) (discussing NFLs extensive

and far-reaching efforts to control all aspects of intellectual property associated

with the game). Thus, material facts are in dispute and summary judgment was

inappropriate.

On the record in this case, the logo is still used as a logo, and all four factors

weigh in favor of Bouchat, the copyright owner. Beyond the four statutory factors,

however, [f]air use is an equitable rule of reason, for which no generally

applicable definition is possible. Sundeman, 142 F.3d at 202 (quoting H.R. Rep.



33/71

22

No. 94-1476, at 65 (1976)). Defendants, however, are not innocent third parties

chronicling the history of football or logos, or some other party unrelated to

Defendants infringement. Defendants are adjudicated infringers of the very same

works at issue in this case, and the mere passage of time bestows no transformation

of use upon the copyrighted work. As such, Defendants present desire to use the

infringing work for their own benefit is the antithesis of fair use.

ARGUMENT

STANDARD OF REVIEW

Fair use is a mixed question of law and fact. Sundeman, 142 F.3d 194,

201 (quoting Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539,

560 (1985)). The standard of review for the District Courts ruling on the motions

for summary judgment is a de novo review of the factual record, applying the same

standard by which the District Court was bound to determine whether it erred as a

matter of law. Bond v. Blum, 317 F.3d 385, 393 (4th Cir. 2003) (de novo,

applying the same standard that the district court was required by law to apply for

granting the motion for summary judgment).In reviewing the evidence related to

a motion for summary judgment, the Court will consider all evidence and draw all

permissible inferences from the underlying facts in the light most favorable to the

party opposing the motion. Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d

211, 214 (4th Cir. 1993).



34/71

23

DISCUSSION OF THE ISSUES

The 1976 Copyright Act, 17 U.S.C. 106, confers a bundle of exclusive

rights to the owner of the copyright. Harper & Row, 471 U.S. at 546. The

fundamental and exclusive rights accorded to a copyright owner are to do and to

authorize any of the activities specified in the six numbered clauses of 106. 17

U.S.C. 106. (Add. 1). The exclusive rights encompassed by these clauses,

although closely related, are independent of each other, and they can generally be

characterized as rights to copy and adapt and to publicly distribute and display.

Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154, 158 (3rd Cir.

1984); H.R. Rep. No. 94-1476 at 61, reprinted in1976 U.S.C.C.A.N. 5659, 5674-

5; see also2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright,

8.01[A], at 8-17 to 8-18 (2004).

Section 106 provides, in pertinent part, that the owner of a copyright, such as

Bouchat, has the exclusive rights to do and authorize any of the following:

(1) to reproduce the copyrighted work in copies;* * * *

(3) to distribute copiesof the copyrighted work to thepublic by sale or other transfer of ownership, or by rental,lease, or lending; [and]

* * * *(5) to display the copyrighted [pictorial] work

publicly; * * * *

17 U.S.C. 106. (Add. 1).



35/71

24

Anyone who violates one of these rights is an infringer of the copyright by

virtue of 17 U.S.C. 501(a). One exception, however, is that a fair use of a

work, as provided by 17 U.S.C. 107, is not an infringement. The four mandatory

factors that a court must consider in determining whether a given use of a

copyrighted work constitutes fair use are:

(1) the purpose and character of the use, includingwhether such use is of a commercial nature or is fornonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used inrelation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for orvalue of the copyrighted work.

17 U.S.C. 107 (Add. 2); see also Sundeman, 142 F.3d at 202. Beyond the four

statutory factors, however, [f]air use is an equitable rule of reason, for which no

generally applicable definition is possible. Sundeman, 142 F.3d at 202 (quoting

H.R. Rep. No. 94-1476, at 65 (1976)). These four factors may not be treated in

isolation, one from another but rather shall all be explored and the results

weighted together. Id. (quoting Campbell, 510 U.S. at 578).

The copyrighted work at issue here is a pictorial work as defined by 17

U.S.C. 101. The exclusive right to reproduce a copyrighted pictorial work under

106 includes the right to reproduce the work in or on any kind of article, whether



36/71

25

useful or otherwise. 17 U.S.C. 113(a) (Add. 3). Section 113 makes clear that

Congress intent was to afford protection to the copyright owner against the

unauthorized reproduction of his work in useful as well as nonuseful articles.

H.R. Rep. No. 94-1476 at 105, reprinted in1976 U.S.C.C.A.N. 5659, 5720.

From 1996 to 1998, when the Ravens placed Bouchats copyrighted logo on

their helmets, field and game tickets, Defendants violated Bouchats exclusive

right to reproduce his copyrighted work under 106(1) and 113(1). See Bouchat

IV, 619 F.3d at 306. When distributing tickets or Game Day magazines between

1996 and 1998, Defendants violated Bouchats rights under 106(3). Id., at 313-

14. Defendants violated his rights under 106(5) when they publicly displayed the

logo at football games, whether affixed to the helmets or on the field. Id., at 308.

Similarly, when Defendants captured games on film and in photographs in 1996,

1997 and 1998, they violated Bouchats 106(1) right to reproduction. See id., at

313-14. Defendants violated his 106(3) right to distribute when they sold the

films or photographs, as well as his 106(5) right to display when they publicly

displayed the films or photographs. See id., at 308. Essentially, each game the

Ravens played from 1996 through 1998 was an infringing event, staged by

Defendants and part of a mass infringement that was ultimately captured on film

and in photographs.



37/71

26

Each Defendant, or its privies, was adjudicated an infringer in 2002 and

2003. See Bouchat I, supra, 241 F.3d 350; Bouchat III, 506 F.3d at 324; Bouchat

IV, 619 F.3d at 306. Defendants were again adjudicated infringers for selling, and

offering to sell, highlight game films to the public in 2012, after remand from this

Court. Bouchat IV, supra, 619 F.3d at 308-14.

I . IT IS NOT FAIR USE FOR THE NFL TO COMMERCIALLYEXPLOIT ON THE INTERNET AND THE NFL NETWORK ITSORIGINAL INFRINGEMENT OF THE FLYING B LOGO.

While the films no doubt add to the historical recordof Ravens play, the use of the logo in those filmssimply fulfilled its purpose of identifying the team.The logo continues to fulfill that purpose whenever ahighlight film is shown. . . . . The Flying B logo onthe helmets of one team helps . . . identify the team asthe Ravens. Bouchat IV, 619 F.3d at 309.

A. THE NFL IS BARRED BY ISSUE PRECLUSION FROMASSERTING FAIR USE FOR DISPLAYING THE FL YING BLOGO IN GAME FILMS ON THE INTERNET AND THE NFLNETWORK OR, ALTERNATIVELY, THIS CASE ISCONTROLLED BY PRINCIPLES OF STARE DECISIS AS

THIS COURT HAS ALREADY DETERMINED THAT THENFLS COMMERCIAL EXPLOITATION OF ITS ORIGINALINFRINGEMENTS IN GAME FILMS FROM THE 1996, 1997AND 1998 RAVENS SEASONS IS NOT FAIR USE.

A logo is an identifying symbol. The Flying B logo

was designed and used as a symbol identifyingwhatever or whomever it adorned with the BaltimoreRavens football organization. A football playerwearing a helmet with the Flying B logo is readilyidentified as a football player for the Ravens. Thestadium field painted with the Flying B logo identifiesit as the home field of the Ravens football team.



38/71

27

There is no transformative purpose behind thedepiction of the Flying B logo in the highlight films.The use of the logo in the films serves the same

purpose that it did when defendants first infringedBouchat's copyrighted Shield logo design: the FlyingB logo identifies the football player wearing it withthe Baltimore Ravens. The simple act of filming thegame in which the copyrighted work was displayeddid not add[ ] something new to the logo. BouchatIV,619 F.3d at 309.

The issue of the NFLs commercial exploitation of game footage from the

Ravens 1996, 1997 and 1998 seasons was decided in Bouchat IV, at which time

the Court held it was not fair use. Id., at 313-14. Although there was a dissenting

opinion by Judge Niemeyer inviting Supreme Court review, id., at 322, the NFL

elected to not file a petition for writ of certiorari with the Supreme Court. The NFL

is thus barred from re-litigating this issue. Nash County Bd. of Ed. v. Biltmore Co.,

640 F.2d 484, 486, 490 (4th Cir. 1981) (quoting Montana v. United States, 440

U.S. 147, 153 (1979)); Allen v. McCurry, 449 U.S. 90, 94-5 (1980); United States

v. Tatum, 943 F.2d 370, 382 (4th Cir. 1991); Weinberger v. Tucker, 510 F.3d 486,

493 (4th Cir. 2007); In re Microsoft Corp. Antitrust Litig., 355 F.3d at 326. To the

extent that issue preclusion is not applicable to the holding in Bouchat IV,

principles ofstare decisiscontrol the issue. Mathews, 485 U.S. at 66-67

(bow[ing] to stare decisis) (Brennan, J., concurring); Hutto v. Davis, 454 U.S.

370, 374-75 (1982).



39/71

28

In Bouchat IV, this Court considered the Ravens display of the infringing

logo in a short highlight film from the 1996 season on its large video screen

during home games and found that it was part of an entertainment package

included in the price of tickets to the games. Id., at 306, 309. The Court also

considered the NFLs public sale of half-hour long Ravens annual highlight films

of the 1996, 1997 and 1998 seasons to be objects of entertainment, marketed and

sold to the public on the NFLs website. Id., at 308. This Court rejected the

District Courts conclusion that the use of the highlight films was primarily

historic and, transformative. Id., at 309. The use of the logo in the videos was still

to fulfill the logos purpose of identifying the team. Id. The Court concluded that

[t]he core commercial purpose of the highlight films does not align with the

preambles protected purposes of comment, news reporting, research, and the

like. Id., at 308. [T]he character of the use in the highlight films is particularly

indefensible because the Ravens and the NFL are exploiting to their commercial

advantage the original infringements. Id., at 313-14.

In this case, the NFL owns and operates its own website and television

network where it displays the infringing work on programs it creates and produces

and from which it directly gains a financial benefit through the use of paid

advertisements. (JA 16-18, 49-50, 134). The programs at issue consist of

excerpted footage and film from prior professional football games, which make the



40/71

29

programs essentially highlight videos. The television series and episodes at issue,

in which clips of Ravens players helmets are visibly seen, are materially

indistinguishable in nature from those highlight videos that were the subject of

Bouchat IV. As noted above, Bouchat IV involved a video with highlights of

footage from a previous game between the Baltimore Ravens and the St. Louis

Rams, played on October 27, 1996, in which the Flying B logo was visibly seen

and displayed on the Jumbotron screen at M&T Bank Stadium during a football

game. Id., at 308-09. Also at issue in Bouchat IV were the annual highlight videos,

one from each season between 1996 and 1998, which lasted approximately thirty

minutes and included numerous clips of plays, along with historical commentary

and discussion of the plays and players and on each of the respective seasons, as

well as the return of professional football to Baltimore. Id., at 306-07. The films in

Bouchat IV wereentitled: 1996 Season Highlight Baltimores Back; 1997

Baltimore Ravens Season Highlight Breaking New Ground; and 1998

Baltimore Ravens Season Highlight Foundation for the Future. Bouchat IV,

Joint Appendix, pages 104-06, Court of Appeals Record Number 08-2381.4 All of

these works were determined to be an infringement upon Bouchats copyright in

Bouchat IV.

4The DVDs were submitted to the Court as part of the joint appendix inBouchat IV.



41/71

30

The programs at issue in this case also contain highlight footage in the form

of a television series. The Sound FX series contains no outside commentary and

virtually no voice over, only the footage and sounds of the game and micd

players. (JA 48). It is sheer entertainment and, when construed in a light most

favorable to Plaintiff, is not a documentary. TheTop Tenseries includes

commentary similar to that contained in the yearly highlight videos. (JA 47-48,

148). Top Ten Draft Classeseven contains identical footage from the 1996 yearly

highlight film which was the subject ofBouchat IV, and adjudicated by this Court as

infringing.5 (JA 134). Top Ten Draft Classesalso contains other highlights from the

1996 Ravens football games and depicts the Flying B logo. (JA 148). The second

infringing work,Top Ten Draft Busts, also uses the Flying B logo to identify a

player as a Baltimore Raven during a game against the proposed draft bust,

Lawrence Phillips. (JA 47-48, 148). The third infringing work, Sound FX: Ray

Lewis, focuses exclusively on Ray Lewis as a Baltimore Raven and contains

highlights from Lewis first three seasons, wherein the Flying B logo is seen. (JA

47-48, 147). As in Bouchat IV, the logo is used in each instance on a helmet in the

footage, as a symbol to identify the player on the field as a Baltimore Raven, as well

5 The identical footage displays the logo on the side of Baltimores oldMemorial Stadium and accompanied by the commentary welcome to MemorialStadium...the old girl is back in town. Yes, its been since December of 83 that aBaltimore team has played pro football here. ComparePhysical Exhibit 1 (NFLDVD 0002) (JA 48) with Bouchat IV, Joint Appendix, page 105, Court of AppealsRecord Number 08-2381.



42/71

31

as in the footage of Memorial Stadium where it is used to identify the Ravens

stadium. (JA 134). These television programs, whether viewed on television or on

the Internet, were created for the purpose of entertainment for the NFLs fans and

followers. (JA 47).

The District Court summarily labeled the series in question as

documentaries and thereby afforded them transformative status. (JA 197-202).

Documentary is defined as [f]actual, realistic; applied esp. to a film or literary

work, etc., based on real events or circumstances, and intended primarily for

instruction or record purposes. Oxford English Dictionary, 3rd Ed.,OXFORD

UNIVERSITY PRESS (1989).6 Bouchat disputes that the videos in question are

documentaries.Top Ten, a television series with individual episodes about

particular topics, in this instance a draft class and a draft bust, includes commentary

from various journalists, players or sports analysts in which they weigh in and

provide the reasoning for the pick. (JA 47). Thus, this involves discussion on an

opinion that is subject to debate, not a factual report or record. The Sound FX series

contains no outside commentary and does not provide any factual record or report

but rather records the players via a microphone to allow the viewer to see and hear

6 The Supreme Court, in determining the ordinary meaning of words,recognizes both the Oxford English Dictionaryand Websters Third NewInternational Dictionaryas authoritative sources, as well as others. Taniguchi v.Kan Pacific Saipan, Ltd., ___ U.S. ____, 132 S. Ct. 1997, 2002-2004 (2012).



43/71

32

players hits, grunts, yells, exhortations and other game sounds. (JA 48).

Construing the record in a light most favorable to Plaintiff, these programs are not

documentaries. However, if these episodes are considered documentaries, then the

yearly highlight films adjudicated in Bouchat IV are documentaries of the same ilk.

The District Court found that use of the logo in the television shows at issue

was substantially transformative so as to outweigh those other fair-use factors,

including its core commercial use that would weigh against fair use.7 (JA 199-

7As noted in Campbell, a transformative work is one that alters the original

work with new expression, meaning, or message. Perfect 10, Inc. v.Amazon.com, Inc., 508 F.3d 1146, 1164-65 (9th Cir. 2007) (holding that Internetsearch engines use of thumbnail images of copyrighted photographs was fair use)(quoting Campbell, 510 U.S. at 579). A use is considered transformative onlywhere a defendant changes a plaintiffs copyrighted work or uses the plaintiffscopyrighted work in a different context such that the plaintiffs work is transformedinto a new creation. Id., at 1165. If the secondary use adds value to the original--

if [copyrightable expression in the original work] is used as raw material,transformed in the creation of new information, new aesthetics, new insights andunderstandings--this is the very type of activity that the fair use doctrine intends to

protect for the enrichment of society. Castle Rock Entmt, Inc. v. Carol PublgGroup, 150 F.3d 132, 142 (2nd Cir. 1998) (holding The Seinfeld Aptitude Test, atrivia quiz book devoted exclusively to testing its readers recollection of scenes andevents from the comedy television series Seinfeld, was not fair use and quotingPierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990)(cited throughout the Campbell opinion)); Folsom v. Marsh, 9 F. Cas. 342, 345(C.C.D. Mass. 1841) (No. 4,901) (Story, J.) (There must be real, substantialcondensation of the materials, and intellectual labor and judgment bestowed thereon;and not merely the facile use of the scissors; or extracts of the essential parts,constituting the chief value of the original work.), cited as foundational authorityfor fair use analysis in Campbell, 510 U.S. at 578-79; Sundeman, 142 F.3d at 206n.18 (citing Campbell, 510 U.S. at 587-88) (The more material copied directly froma copyrighted work tends to show a lack of transformative character.. .).



44/71

33

202). The District Court employed virtually the same rationale concerning

transformation in this case that was previously rejected by this Court in Bouchat

IV and stated:

[t]he Documentaries are substantially transformativeuses. Each offers commentary, criticism, and documentshistorical facts. Each use in these films adds somethingnew by representing factual content, documenting andcommenting on historical events, or functioning as a

biography or career retrospective. The Flying B Logo, tothe extent seen in the Documentaries, is being used notfor its expressive content, but rather for its...factual

content. Bouchat IV, 619 F.3d at 314 (quotingBond,317 F.3d at 396).

(JA 200-01). This Court expressly rejected the notion that dramatic editing,

music, narration and historical purpose transformed the use of the infringing

logo:

We disagree with the district court's conclusion that thepurpose behind the use of the Flying B logo in thehighlight films was primarily historical. While thefilms no doubt add to the historical record of Ravens

play, the use of the logo in those films simply fulfilledits purpose of identifying the team. The logo continuesto fulfill that purpose whenever a highlight film isshown. . . . . The Flying B logo on the helmets of oneteam helps him identify the team as the Ravens. Thelogo plays the same role . . . . Its purpose is nottransformed in the highlight film, viewed some fourteenyears later.



45/71

34

Simply filming football games that include thecopyrighted logo does not transform the purpose behindthe logo's use into an historical one. Defendants point tothe dramatic editing, music, and narration in the highlightfilms in an attempt to show a transformative use for thelogo. But none of these effects transform the purpose

behind the display of the logo. The narrator in the filmsnever comments on the controversy surrounding the useof the Flying B logo. Nor are the films a documentary onthe history of the Ravens logo. Instead, the films simplycapture highlights of three Ravens seasons andnecessarily portray the Flying B logo as it was actuallyused-to identify the Ravens team.

Bouchat IV, 619 F.3d at 309.

Construing the record in a light most favorable to Bouchat, the videos here

are merely sports entertainment, whether or not labeled as documentaries.8

Both

theTop Tenand Sound FX programs are television shows with individual episodes,

intended to provide entertainment to NFL fans and followers. (JA 47). TheTop

Tenepisodes each incorporate sports commentary about a particular topic, in this

instance the best draft classes and biggest draft busts, to expound upon the basis for

making this particular list. Sound FX provides an inside look into professional

football from the sights and sounds of an individual player, Ray Lewis. No

commentary from outside resources, factual record or reporting is included in

Sound FX, which makes it anything but a documentary.

8 The Webster New International Dictionary(Third Edition) definesentertainment as [t]he act of diverting, amusing or causing ones time to passagreeably.



46/71

35

These television programs are not transformative and do not alter or edit the

infringing work, but rather they directly display the Flying B logo in the same

manner as the original infringing work. The shows each use film highlights taken

from football games in which the logo is meant to identify the Ravens. Defendants

gain commercially from the use of such programs through paid advertisements

they receive that air during the telecast or on the Internet. (JA 49-50). In

substance, the use of the highlights and clips is no different from that which was

already adjudicated in Bouchat IV and found to be infringing. Every depiction of

the Flying B logo in these programs is, therefore, a commercial exploitation and

not eligible for fair use status by virtue of issue preclusion or the binding precedent

of this Court.

B. THE NFLS DISPLAY ON THE INTERNET AND THE NFLNETWORK OF VIDEOS WITH THE INFRINGING LOGO INGAME FILMS FROM THE 1996, 1997 & 1998 RAVENSSEASONS IS NOT FAIR USE BECAUSE IT I S ACOMMERCIAL, NON-TRANSFORMATIVE EXPLOITATIONOF THE NFLS ORIGINAL INFRINGEMENT.

As in Bouchat IV, there is no transformative use of the logo here as the core

commercial purpose has not changed. There is no commentary on the logo or the

logos history. The logo, as in Bouchat IV, is being used to identify the players as

Ravens. While the videos here add to the historical record of Ravens play, the

use of the logo in those films simply fulfilled its purpose of identifying the team.

Bouchat IV, 619 F.3d at 309. Furthermore, the District Court found that the NFLs



47/71

36

use of the videos without a doubt was commercial and that the NFL earns income

by making them available to viewers. (JA 200). Therefore, as in Bouchat IV, this

core commercial purpose of the...films does not align with the preambles

protected purposes of comment, news reporting, research, and the like. Id., at

308. Relying on Campbell, 510 U.S. at 584-85, however, the District Court

concluded that a sufficiently transformative use, such as the parody in Campbell,

could be fair use despite obviously commercial and exploitive unauthorized use.

(JA 200).

In every case in which fair use of the entire copyrighted work has been

found to be transformative, the appropriated work was itself the subject of a

controversy or commentary or was physically altered to such an extent that its

original expressive content was altered or eclipsed. See, e.g., Campbell, 510 U.S.

at 577-94 (1994) (rap parody of Roy Orbison song constituted fair use where

lyrics were altered and parodied); see alsoNunez v. Caribbean Intl News Corp.,

235 F.3d 18, 22-23 (1st Cir. 2000) (publication of professional photographers

photographs of Miss Puerto Rico Universe posing naked that were originally

intended to appear in modeling portfolios but had become the subject of a public

controversy and were used by the alleged infringer newspaper in conjunction

with reporting and editorial commentary on the photographs and the controversy);

Bill Graham Archives, 448 F.3d at 608-12 & n.3&4 (use of copyrighted concert



48/71

37

posters and concert tickets by a lengthy, creative biographical work to trace the

history of a rock band, and display of the copyrighted works in significantly

reduced size and format arranged in a creative fashion to illustrate and explain

historical event and in such a fashion that the details of the images were barely

visible);9Perfect 10, 508 F.3d at 1164-65 (holding that Internet search engines use

of thumbnail images of copyright photographs was fair use); Vanderhye v.

iParadigms, LLC, 562 F.3d 630, 639 (4th Cir. 2009) (use was transformative

where school converted student papers to digital code and archived them in that

format for purpose of evaluating originality of school papers in order to prevent

plagiarism); Sundeman, 142 F.3d at 202-03 (scholars substantial quotations and

paraphrasing from Blood of My Blood were for the purpose of scholarly

appraisal ofBlood of My Blood from a biographical and literary perspective[in

that] she attempted to shed light on Rawlings development as a young author,

review of the quality ofBlood of My Blood and comment on the relationship

9 In Bill Graham, the Courts conclusion of transformative purpose wasstrengthened by use of the images by the Illustrated Trip in significantly reducedsize in combination with a prominent timeline, textual material, and originalgraphical artwork, to create a collage of text and images on each page of the book.The images were displayed at angles and the original graphical artwork isdesigned to blend with the images and text[and the] layout ensures that theimages at issue are employed only to enrich the presentation of the cultural historyof the Grateful Dead. Id., at 610-11. Additionally, the format of the posters wassubstantially reduced in the manner used in the Illustrated Trip so that the details ofthe images were barely visible.



49/71

38

between Rawlings and her mother); Blanch v. Koons, 467 F.3d at 251-54;10

Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2nd Cir. 1998).11 In this

case, however, the appropriating work does not add anything new to the logo and

10The Court described Koons Easyfun-Ethereal painting series, which

included the appropriating work, as collages of images that Koons culled fromadvertisements and his own photographs, and scanned into a digital format fromwhich he superimposed the images against backgrounds of pastoral landscapes andthen printed in color and used as templates for application of paint to billboard-sized paintings (10 x 14). Id., at 247. The Court described the appropriating

painting at issue, Niagara, as depicting four pairs of womens feet and lowerlegs dangling prominently over images of confections--a large chocolate fudge

brownie topped with ice cream, a tray of donuts and a tray of apple danish pastries--with a grassy field and Niagara Falls in the background. Id.

11 In Leibovitz, the Second Circuit affirmed summary judgment in favor ofthe defendant on the ground of fair use. Leibovitz was the creator of a

photograph of an actress, Demi Moore, that appeared on the cover ofVanity Fairmagazine, depicting Moore, who was pregnant at that time, in a nude profile withher right hand and arm covering her breasts and her left hand supporting herdistended stomacha pose evoking BotticellisThe Birth of Venus. Leibovitz,

137 F.3d at 111. The appropriating work was a teaser for an advertisingcampaign for a slap-stick comedy film entitled Naked Gun 33: The FinalInsult, starring Leslie Nielsen. Paramount commissioned another photograph to

be taken of a nude, pregnant woman, posed in the exact same manner as Moore,which was then digitally enhanced to match the skin tone and shape of Moores

body in the Leibovitz photograph. The creator of the digital image thensuperimposed on the models body a photograph of Nielsens face, with his jawand eyes positioned roughly at the same angle as Moores, with her serious lookreplaced by Nielsens mischievous smirk. Id. An advance of the March 1994release date of the film, depicting Nielsen as the pregnant Demi Moore,

proclaimed DUE THIS MARCH. The Second Circuit concluded that the adplainly added something new and qualified as a transformative work. Id., at 114.Although the Court indicated that whether it commented on the original was asomewhat closer question, the ad was a ridicule and a parody of the copyrightedwork that served as sufficient comment to tip the first factor in favor of fair useunderCampbell. Id.



50/71

39

does not alter the logo with some new expression, meaning or message. Rather,

the exact appropriating work is used by the same infringers, not some unrelated

third party, as part of the entertainment package it offers the public. SeeBouchat

IV, 619 F.3d at 308, 311.

C. THE DISTRICT COURT FAILED TO ASSESS THE NATUREAND EXTENT OF TRANSFORMATION, IF ANY, ANDWEIGH IT AGAINST THE DEGREE OF COMMERCIAL ITYAND OTHER 107 FACTORS.

As before, important to the analysis is whether and to what extent the new

work is transformative. Id., at 308 (quoting Campbell, 510 U.S. at 579). The

District Court did not assess to what extent the uses were transformative but

rather simply declared that the uses were substantially transformative, without

any analysis or rationale for its conclusion. (JA 194-95). To the extent that there

is arguably some transformation, the District Court did not weigh the degree of

transformation against the commerciality of the use and the other 107 factors.

(JA 197). Construing the record in a light most favorable to the copyright owner,

the core commercial purpose does not align with the protected purposes of 107.

Bouchat IV, 619 F.3d at 308.

Fair use of Bouchats logo could potentially include the use of the video

clips in a sports museum from which the original infringers obtain no commercial

benefit. Fair use might be when a local Baltimore television station, in a pre-

Super Bowl show, shows a short clip of Ray Lewis tackling San Francisco 49ers

Appeal: 12-2548 Doc: 30 Filed: 03/05/2013 Pg: 50 o

Bouch at Appeal

Documents

Transcript of Bouch at Appeal