Reminding the Fourth Circuit That Fair Use Protects the Historical Record

Can the owner of a copyrighted work use her rights to censor history? Courts applying fair use principles have typically held that she cannot. Nevertheless, a recent decision from the Federal Court of Appeals for the Fourth Circuit lets a disgruntled designer do exactly that. ARL (along with our allies in the Library Copyright Alliance) has joined an amicus brief today prepared by Anthony Falzone at the Stanford Fair Use Project asking for the full Fourth Circuit to rehear the case and reconsider the panel’s flawed fair use reasoning.

From 1996 to 1998, the Ravens used a logo that was later determined to infringe Frederick E. Bouchat’s copyrighted drawing, which he had submitted to the Ravens. The resemblance is pretty striking:

Ravens LogoBouchat Logo

from wikipedia

The story of how they came to infringe is bizarre and seemingly innocent—Wikipedia has a brief summary, including pictures of the various logos and sketches involved. In any case, Bouchat sued and won, and the team has used a new logo since 1999. However, the infringing logo of course continues to appear on artifacts and documents of those three seasons, such as highlight films, ticket stubs, and programs.

Mr. Bouchat sued the Ravens and the NFL and asked the court for nothing less than the right to suppress every depiction of his logo, including every depiction of the Baltimore Ravens in uniforms bearing the logo from 1996 to 1998. The district court denied his request, saying these historical depictions were fair use. On appeal, however, a panel of the Fourth Circuit reversed the district court and held that while fair use may protect some displays of the infringing uniforms (in photos at the Ravens’ headquarters, for example), fair use does not protect the depiction of those uniforms in NFL highlight films and short videos shown in the stadium at Ravens home games. The court denied that these depictions were “transformative,” and emphasized the for-profit nature of the highlight films and in-stadium videos.

Falzone’s excellent amicus brief reminds the court that there is overwhelming precedent to support the Ravens’ claim of fair use. The brief makes several important points, but perhaps the most important point is that for-profit use is not fatal to a fair use claim. The court gave significant weight to the fact that the highlight films are “commercial,” while the headquarters displays that it found to be fair use were “free of charge.” This differential treatment is in direct contradiction of the Supreme Court’s ruling in Campbell v. Acuff Rose that commercial uses are not disfavored in fair use analysis.

The import of this decision could be quite significant. The Supreme Court has said that fair use is an essential First Amendment protection because it ensures that the copyright monopoly is not allowed to become a limitation on vital freedoms of expression. If courts decline to apply fair use to protect something as fundamental as the right to document historical facts, they upset the constitutional balance in copyright law. The “exclusive rights” of authors and inventors were never meant to give them a license to censor history. Hopefully the Fourth Circuit will reconsider this very unfortunate decision.