A battle lasting longer than fifteen years over the Baltimore Ravens’ “Flying B” logo has finally come to an end, after multiple lawsuits by the owner of the copyrighted work, Frederick Bouchat.  Affirming the lower court’s decision, the United States Court of Appeals for the Fourth Circuit ruled that the NFL’s use of the logo in three videos and in certain historical displays in the team’s stadium was Fair Use.  The three videos Bouchat challenged 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.  The historical displays Bouchat challenged were a timeline, a highlight reel, and a significant plays exhibit, all of which were located on the Club Level section of the Ravens’ stadium.

The Court analyzed each alleged infringing use using each of the four Fair Use factors. With regard to the three videos, the Court found that the first factor, whether the use was transformative, was met.  Rather than the initial use of serving as the brand symbol for the team, the Flying B is now used in the videos as part of the team’s historical record.  The infrequent appearance of the logo supports the finding of transformative use, as the logos appear only for a few seconds.  Also part of the analysis under this factor was the commercial nature of the use.  Indeed, the NFL’s use of the logo is largely commercial, but the Court found that this was outweighed by the highly transformative and limited nature of the uses.

The second factor, the nature of the copyrighted work, was found to be neutral. Citing its own decision in a prior Bouchat case, the Court stated that the second factor may be of limited usefulness where the creative work of art is being used for a transformative purpose.

The third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, was also found to be neutral.  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, so the factor has limited influence.

The fourth factor is the effect of the use upon the potential market for or value of the copyrighted work.  This involves assessing whether the NFL’s use of the logo would materially impair the marketability of the work and whether it would act as a market substitute for it. A transformative use renders market substitution less likely and market harm more difficult to infer. Due to the transient and fleeting use of the Flying B logo, as well as the factual (as opposed to expressive) content, the Court concluded that the logos served a different purpose in the videos than they do standing alone.

Bouchat also challenged the incidental use of the Flying B logo in certain historical displays located on the Club Level of the Baltimore Ravens’ stadium – a timeline, a highlight reel, and a significant plays exhibit.  The Court undertook a similar analysis as that above and again concluded Fair Use, stating: “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’…This regime…would chill the very artistic creation that copyright law attempts to nurture.”

David M. Lilenfeld