Throwback Baltimore Ravens Uniform In EA's Madden NFL Video Game Is Not A Fair Use

This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.

Bouchat v. NFL Properties LLC, No. 11 Civ. 2878 (Nov. 19, 2012).

The Baltimore Ravens may be off to an impressive 9-2 start this NFL season, but the club's defensive line (of lawyers) couldn't hold off a successful copyright infringement claim by security guard and artist Frederick Bouchat based on the unauthorized inclusion of his Ravens logo design in a football video game. The November 19, 2012 decision by Judge Marvin J. Garbis of the United States District Court for the District of Maryland was the latest in a longstanding series of lawsuits brought by Bouchat against the NFL, the Baltimore Ravens and others for their unauthorized use of a derivative of his Ravens logo.

Here's the highlight reel.

In late 1995, Bouchat created and obtained a copyright in the "Shield Drawing," which he faxed over to the Maryland Stadium Authority when he heard that Baltimore was finally getting back an NFL team:1

Apparently due to a mix-up at the licensing division of the NFL, a substantially similar "Flying B Logo" was used as the Raven's primary logo during the team's first three (1996-1998) seasons:

Bouchat sued the Ravens and the NFL and established copyright infringement, but recovered no damages due to a jury finding that the revenues generated from various Ravens merchandise (e.g., t-shirts, caps, souvenir cups, and other items bearing the Flying B Logo) – the only infringing materials then at issue – "were attributable entirely to factors other than the Defendants' infringement of Bouchat's copyright." Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 519 (4th Cir 2003).

Undeterred, Bouchat has continued to assert claims based on subsequent uses of his logo, including three uses that Judge Garbis addressed in his latest decision. On cross-motions for summary judgment, the court determined that two challenged uses of the logo – in stadium displays relating to Baltimore sports history and in documentary videos that included footage of the inaugural Ravens team – were non-infringing fair uses. However, as to the third use, which involved the inclusion of the Flying B Logo in Electronic Art's (also a defendant in the lawsuit) Madden NFL video football game, the court determined that fair use did not apply. Specifically, the '10, '11 and '12 versions of game included a "throwback uniform" feature that allows game players to adorn their virtual NFL...