'Fair Use' and ... Football?
Feel free to walk with a bit more of a strut today, all you librarians: A bunch of big strong football players have turned to you for protection. (Okay, so it's in a courtroom, not on a playing field. But still ...)
At the urging of the National Football League, three library associations and two other groups have filed a friend-of-the-court brief urging a federal appeals court to reconsider a decision this month that the scholarly groups say would dangerously narrow the widely used definition of "fair use" of copyrighted materials.
If upheld, the groups argue, the ruling by the U.S. Court of Appeals for the Fourth Circuit could impair the ability of scholars, librarians, documentary producers, and news organizations to "present a truthful and accurate account of events in any audio or visual medium."
The case, Frederick E. Bouchat v. Baltimore Ravens Limited Partnership, seems in its broad outlines an unlikely topic for a higher education website. When the Baltimore franchise was born in the mid-1990s (after the then-owner of the Cleveland Browns moved that team to Maryland), the team for three years used as its official symbol an unauthorized copy of a drawing that Bouchat had proposed to the team. In several previous rulings in the case, the Fourth Circuit court had concluded that the Ravens had infringed Bouchat's copyright, but concluded that neither the team nor the NFL owed him damages. The Ravens stopped using the logo that was based on Bouchat's drawing in 1998.
The most recent lawsuit brought by Bouchat, in 2008, sought to restrict the Ravens (and the NFL as a whole) from using any rendering of the Bouchat-based logo in its promotional materials. Bouchat had two main targets: annual highlight films that the NFL's vaunted film producers had made for the Ravens from the 1996 to 1998 seasons (sold for $50), and a display of Ravens history that appears in the team's corporate headquarters in suburban Baltimore. In both cases, the continued depiction of the logo by the Ravens and the NFL infringed his copyright and must be stopped, Bouchat argued.
In its ruling, a divided three-judge panel of the Fourth Circuit upheld the Ravens' use of the copyrighted logo in its lobby, saying that the image was protected by the "fair use" exception to copyright law in that instance because "the use of the logo in a museum-like setting 'adds something new' to its original purpose as a symbol identifying the Ravens," and because in that setting, there is no "clear-cut commercial purpose" to its use.
But the court saw the issue very differently when it came to the year-end highlight films sold by the NFL and the historical highlight footage played during Ravens' home games in Baltimore -- video footage that showed the "Flying B" logo on the helmets of players at the time, and painted on the Baltimore stadium's turf. Applying the four-part test typically employed to determine whether a particular use of copyrighted material qualifies for an exemption as a "fair use," the court's majority found that the Ravens' use of the logo in the films serves the same purpose it did originally, which the court had previously ruled infringed Bouchat's copyright.
"There is no transformative purpose behind the depiction of the Flying B logo in the highlight films," the opinion of the two-judge majority said. "The use of the logo in the films serves the same purpose that it did when defendants first infringed Bouchat’s copyrighted Shield logo design: the Flying B logo identifies the football player wearing it with the Baltimore Ravens. ...
"We disagree with the district court’s conclusion that the purpose behind the use of the Flying B logo in the highlight films was 'primarily historical,' " the opinion continues. "Simply filming football games that include the copyrighted logo does not transform the purpose behind the logo’s use into a historical one."
Implications for Academe
The court's stance, if upheld, could have significant ramifications for librarians, documentary filmmakers and others, the International Documentary Association, American Library Association, Association of Research Libraries, Association of College and Research Libraries, and WGBH Educational Foundation argue in their brief urging the entire Fourth Circuit to rehear the Bouchat case.
The decision is "the first time any court has held [that] the appearance of a copyrighted logo or other artwork captured incidentally and unavoidably in the course of a non-fictional narrative constitutes copyright infringement," the groups write.
The court's restrictive view of fair use "flies in the face" of Supreme Court precedent that "protects historical and biographical uses like this one, whether or not they are undertaken for profit." Using copyrighted works in such settings (Grateful Dead posters in an illustrated history of the band, or footage of Muhammad Ali in the boxing ring in a biography of him, to cite two past cases) transforms them into something entirely new that differs from the original, copyrighted work.
The Fourth Circuit's stance, if upheld and applied broadly, would limit examination and exploration of many historical subjects, the groups argue. "It would be difficult, for example, to make an effective biography of a musician without including sound and movie clips depicting his work,... or to create a comprehensive study of surrealist art without including works by Salvador Dali. It would be nearly impossible to document any sliver of life in a major American city without capturing vast numbers of logos, signs, billboards and other copyrighted works along the way. It would be similarly impossible to make a documentary about the healthfulness of McDonald’s food ('Super Size Me') or Walmart’s business practices ('Wal-Mart: The High Cost of Low Price') without depicting each company’s logo."
The groups acknowledge that use of such images wouldn't be barred outright if the Fourth Circuit's approach was widely adopted, but anticipate heavy costs (in time and money) if documentary makers or other content creators were forced to get permission each and every time they sought to use a logo or other copyrighted image. And risk-conscious people might be deterred from certain subjects altogether, said Jonathan Band, an intellectual property lawyer in Washington who worked with the library groups on their brief.
"It's all about chilling effects," Band said. "You could see a documentary filmmaker hearing about the decision and consulting a lawyer, and the lawyer saying, 'You can distinguish it this way and that way, but there's a risk.' For a lot of people, that could be the difference" between pursuing a project or not.
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