Owning the copyright in the Baltimore Ravens NFL logo should be as good as a winning lottery ticket – right? Guess again.
When the Cleveland Browns moved to Baltimore in 1996 and adopted the new name the Baltimore Ravens, Frederick Bouchat, a local security guard and amateur artist, sent the team a drawing of a winged shield for use as a possible logo. NFL Properties, which develops and manages logos and licensing for each team, adopted the “Flying B” shield submitted by Bouchat for the new Baltimore team. Bouchat was never paid for designing the logo and never signed over any rights in the design.
As you would expect, he sued NFL Properties and the Baltimore Ravens seeking damages for using his copyrighted logo. In the first trial the jury found the Ravens infringed Bouchat’s design, Bouchat owns the copyright in the logo and the Ravens used the logo for the first three years of their existence on uniforms, the playing field, tickets, video games, and all sorts of related merchandise. Bouchat and his lawyers were probably anticipating a fat payday.
But in the second trial the jury awarded Bouchat zero dollars in damages because Bouchat was not able to prove that his design directly resulted in any of the millions of dollars of revenue generated by the Ravens. If Bouchat had registered his design with the Copyright Office (a $35 filing fee) BEFORE he sent it to the team, the court could have assessed a fine against the team of between $750 and $30,000 (“as the court deems just”) for each infringing work. 17 USC § 504(c). Since Bouchat did not register the copyright in his design before he sent it to the team he had to prove the value of the design, and came away with zero. Bouchat v. Baltimore Ravens Football Club, 346 F.3d 514 (4th Cir. 2003).
The case is in the news again because on September 2, 2010 the Fourth Circuit once again considered Bouchat’s claim, this time in the context of displaying the logo in NFL films from the years the Ravens used the logo, and for historical displays of memorabilia in the lobby of the Ravens’ office building. The Court threw out the Raven’s claim that the logo’s appearance in its historical films was a “fair use” and sent the case back to the lower court to determine the remedy.
It will be interesting to see how the trial court rules. My guess is they will repeat the earlier decision and hold that while it may be an infringement, there are no damages. If there were no damages for live use, it is hard to see how there will be damages for showing film of the live event.
Bouchat’s fatal error was that he did not register the copyright in the logo before sending it to the team.
More sophisticated copyright owners do not make this mistake. A Las Vegas firm called Righthaven is aggressively enforcing copyright claims against bloggers, websites and other internet users. Initially the firm acquired copyrights only from The Las Vegas Review Journal newspaper, but recently it announced it has a second client, Arkansas based WEHCO Media, publisher of the Arkansas Democrat-Gazette. Righthaven has filed over 100 copyright infringement lawsuits in federal district court in Nevada. The traditional approach to enforcing copyright rights against non-revenue earning defendants is to send a “cease and desist” letter demanding the infringing work be removed and only following up with a suit for damages if the request is ignored. Instead, Righthaven starts by filing the lawsuit and demanding settlement fees around $75,000 per posting. The practice has been compared to a shakedown.
Some interesting defenses have been filed pointing out how the newspaper’s online website invites viewers to share and email the stories. These cases are worth watching.
This aggressive practice is not limited to newspapers. Linda Ellis wrote a poem called “The Dash” about the significance of the dash between the dates of birth and death on a headstone. It is popular at funerals and memorial services, and a Google search reveals Ms. Ellis does not hesitate to pursue monetary settlements from any and all unauthorized uses.
Copyright owners should be compensated, and I do not condone infringing activity. I also am a big fan of civility and common sense, and I strongly oppose bullying. I agree with the Fourth Circuit’s conclusion that Bouchat is not owed any money for the logo. When Bouchat sent the team his design he asked them to send him a letter of recognition and an autographed helmet if they used the design, which they never did. Perhaps this simple gesture could have prevented four federal law suits.