Yesterday, the Fourth Circuit issued an opinion in Bouchat v. Baltimore Ravens Ltd. P’ship, Case No. 12-2543 (4th Cir. Dec. 17, 2013) (“ Bouchat V ”)—the latest iteration of Frederick Bouchat’s crusade against the NFL and the Baltimore Ravens. The court’s opinion is a huge boon to documentarians, biographers, historians, and anyone else interested in using copyrighted material to document, depict, and discuss historical events. Judge Wilkinson, writing for a unanimous panel, went to great lengths to highlight fair use’s importance not only for documentarians and historians, but as a critical “First Amendment safeguard” available to all. And we couldn’t be more pleased.
The facts of the case are relatively simple. From 1996 through 1998, the Ravens used a logo that was found to infringe Bouchat’s copyright in a drawing he’d made and submitted to the Ravens and the NFL. A jury determined, however, that Bouchat was not entitled to any monetary damages. Ever since, Bouchat has been suing the NFL, the Ravens, and their licensees to enjoin a variety of uses of archival material that, of necessity, depicted the infringing logo. In Bouchat V, Bouchat argued that the NFL’s incidental use of the logo in several highlight videos and in historical displays at the Ravens’ stadium infringed his copyright.
In April, we filed an amicus brief on behalf of the International Documentary Association, Film Independent, and the Motion Picture Association of America in support of the NFL and the Ravens. (Our blog post is available here.) In the brief, we stressed the need for filmmakers and others to be able to rely on copyrighted content to accurately depict scenes and tell historical stories and the need for such reliance to be free from the restrictions on use often sought by copyright owners. We are particularly pleased the Court agreed with much of the analysis and argument we offered regarding the stakes at issue for filmmakers. (Read our brief here.)
In finding in favor of the Ravens and the NFL in Bouchat V on all the uses at issue, the court focused on the need for fair use as a bulwark against private censorship. “Absent any protection for fair use, subsequent writers and artists would be unable to build and expand upon original works, frustrating the very aims of copyright policy[,]” the court wrote. “For creation itself is a cumulative process; those who come after will inevitably make some modest use of the good labors of those who came before.” Moreover, fair use “protects filmmakers and documentarians from the inevitable chilling effects of allowing an artist too much control over the dissemination of his or her work for historical purposes. Copyright law has the potential to constrict speech, and fair use serves as a necessary ‘First Amendment safeguard’ against this danger.”
If the permission of copyright owners like Bouchat was needed for “fleeting factual uses” like those at issue in Bouchat V, “we would allow those copyright holders to exert enormous influence over new depictions of historical subjects and events . . . [and] encourage bargaining over the depiction of history by granting copyright holders substantial leverage over select historical facts.” More problematic, the court wrote, “[s]ocial commentary as well as historical narrative could be affected if, for example, companies facing unwelcome inquiries could ban all depiction of their logos. This would align incentives in exactly the wrong manner, diminishing accuracy and increasing transaction costs, all the while discouraging the creation of new expressive works.”
The Fourth Circuit’s opinion in Bouchat V powerfully illustrates the fragility of copyright’s balance between limited exclusive rights and society’s interest in new expression. With this opinion on the books, documentary filmmakers and others should feel more comfortable in utilizing copyrighted content in the creation of historical narratives. And that’s no small thing.
Photo Credit: Maryland National Guard