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RECORD NOS. 12-2543(L), 12-2548 In The

United States Court Of Appeals

For The Fourth Circuit
FREDERICK E. BOUCHAT,
Plaintiff Appellant, v.

BALTIMORE RAVENS LIMITED PARTNERSHIP,

Defendant Appellee.

____________________________

FREDERICK E. BOUCHAT,
Plaintiff Appellant, v.

NFL ENTERPRISES LLC; NFL NETWORK SERVICES, INC.; NFL PRODUCTIONS LLC, d/b/a NFL Films, a subsidiary of NFL Ventures L.P.,
Defendants Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND AT BALTIMORE

___________ BRIEF OF APPELLANT ___________

Howard J. Schulman Marie J. Ignozzi SCHULMAN & KAUFMAN, LLC 100 North Charles Street, Suite 600 Baltimore, Maryland 21201 (410) 576-0400 Counsel for Appellant
GibsonMoore Appellate Services, LLC 421 East Franklin Street Suite 230 Richmond, VA 804-249-7770 www.gibsonmoore.net 23219

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. 12-2543 No. __________
Frederick E. Bouchat v. Baltimore Ravens Limited Partnership Caption: __________________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

Frederick E. Bouchat ______________________________________________________________________________ (name of party/amicus)

______________________________________________________________________________
Appellant who is _______________________, makes the following disclosure: (appellant/appellee/amicus)

1.

Is party/amicus a publicly held corporation or other publicly held entity?

YES

NO

2.

Does party/amicus have any parent corporations? YES NO If yes, identify all parent corporations, including grandparent and great-grandparent corporations:

3.

Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES NO If yes, identify all such owners:

-1-

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4.

Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(b))? YES NO If yes, identify entity and nature of interest:

5.

Is party a trade association? (amici curiae do not complete this question) YES NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member:

6.

Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors committee:

YES

NO

s/Howard J. Schulman Signature: ____________________________________ Frederick E. Bouchat Counsel for: __________________________________

12/28/12 Date: ___________________

CERTIFICATE OF SERVICE
************************** 12/28/12 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below:
Robert L. Raskopf, Quinn Emanuel Urquhart & Sullivan, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 and Mark D. Gately, Hogan Lovells US LLP 100 International Drive, Suite 2000 Baltimore, Maryland 21202 Attorneys for Appellees

s/Howard J. Schulman _______________________________ (signature)

07/19/2012 SCC

12/28/12 ________________________ (date) -2-

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus case, except that a disclosure statement is not required from the United States, from an indigent party, or from a state or local government in a pro se case. In mandamus cases arising from a civil or bankruptcy action, all parties to the action in the district court are considered parties to the mandamus case. Corporate defendants in a criminal or post-conviction case and corporate amici curiae are required to file disclosure statements. If counsel is not a registered ECF filer and does not intend to file documents other than the required disclosure statement, counsel may file the disclosure statement in paper rather than electronic form. Counsel has a continuing duty to update this information. 12-2548 No. __________
Frederick E. Bouchat v. NFL, Enterprises, LLC, et al. Caption: __________________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,

Frederick E. Bouchat ______________________________________________________________________________ (name of party/amicus)

______________________________________________________________________________
Appellant who is _______________________, makes the following disclosure: (appellant/appellee/amicus)

1.

Is party/amicus a publicly held corporation or other publicly held entity?

YES

NO

2.

Does party/amicus have any parent corporations? YES NO If yes, identify all parent corporations, including grandparent and great-grandparent corporations:

3.

Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES NO If yes, identify all such owners:

-1-

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4.

Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.1(b))? YES NO If yes, identify entity and nature of interest:

5.

Is party a trade association? (amici curiae do not complete this question) YES NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member:

6.

Does this case arise out of a bankruptcy proceeding? If yes, identify any trustee and the members of any creditors committee:

YES

NO

s/Howard J. Schulman Signature: ____________________________________ Frederick E. Bouchat Counsel for: __________________________________

12/28/12 Date: ___________________

CERTIFICATE OF SERVICE
************************** 12/28/12 I certify that on _________________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by serving a true and correct copy at the addresses listed below:
Robert L. Raskopf, Quinn Emanuel Urquhart & Sullivan, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 and Mark D. Gately, Hogan Lovells US LLP 100 International Drive, Suite 2000 Baltimore, Maryland 21202 Attorneys for Appellees

s/Howard J. Schulman _______________________________ (signature)

07/19/2012 SCC

12/28/12 ________________________ (date) -2-

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii JURISDICTIONAL STATEMENT .......................................................................... 1 STATEMENT OF THE ISSUES............................................................................... 2 STATEMENT OF THE CASE .................................................................................. 2 STATEMENT OF FACTS ........................................................................................ 4 A. B. C. NFL Network and nfl.com .................................................................... 6 The Club Level ...................................................................................... 8 Licensed retailers ................................................................................. 13

SUMMARY OF ARGUMENT ............................................................................... 14 ARGUMENT ........................................................................................................... 22 STANDARD OF REVIEW ........................................................................... 22 DISCUSSION OF THE ISSUES .................................................................. 23 I. IT IS NOT FAIR USE FOR THE NFL TO COMMERCIALLY EXPLOIT ON THE INTERNET AND THE NFL NETWORK ITS ORIGINAL INFRINGEMENT OF THE FLYING B LOGO ...... 26 A. THE NFL IS BARRED BY ISSUE PRECLUSION FROM ASSERTING FAIR USE FOR DISPLAYING THE FLYING B LOGO IN GAME FILMS ON THE INTERNET AND THE NFL NETWORK OR, ALTERNATIVELY, THIS CASE IS CONTROLLED BY PRINCIPLES OF STARE DECISIS AS THIS COURT HAS ALREADY DETERMINED THAT THE NFLS COMMERCIAL EXPLOITATION OF ITS ORIGINAL INFRINGEMENTS IN GAME FILMS FROM THE 1996, 1997 AND 1998 RAVENS SEASONS IS NOT FAIR USE .................................................. 26 i

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B.

THE NFLS DISPLAY ON THE INTERNET AND THE NFL NETWORK OF VIDEOS WITH THE INFRINGING LOGO IN GAME FILMS FROM THE 1996, 1997 & 1998 RAVENS SEASONS IS NOT FAIR USE BECAUSE IT IS A COMMERCIAL, NONTRANSFORMATIVE EXPLOITATION OF THE NFLS ORIGINAL INFRINGEMENT .................................... 35 THE DISTRICT COURT FAILED TO ASSESS THE NATURE AND EXTENT OF TRANSFORMATION, IF ANY, AND WEIGH IT AGAINST THE DEGREE OF COMMERCIALITY AND OTHER 107 FACTORS............ 39 DEFENDANTS ARE SERIAL INFRINGERS NOT ENTITLED TO THE BENEFIT OF A GOOD FAITH FINDING AS A MATTER OF LAW ...................................... 40

C.

D.

II.

IT IS NOT FAIR USE FOR THE BALTIMORE RAVENS TO COMMERCIALLY EXPLOIT IN THE RAVENS FOOTBALL STADIUM CLUB LEVEL LOUNGE ITS ORIGINAL INFRINGEMENT OF THE FLYING B LOGO ............ 42 A. B. M&T BANK STADIUM IS NOT A MUSEUM-LIKE SETTING .................................................................................. 44 THE RAVENS DISPLAY OF THE INFRINGING LOGO IN THE STADIUM CLUB LEVEL LOUNGE IS NOT FAIR USE BECAUSE IT IS A NONTRANSFORMATIVE, COMMERCIAL EXPLOITATION OF THE NFLS AND RAVENS ORIGINAL INFRINGEMENT .................................................. 47

CONCLUSION ........................................................................................................ 50 ADDENDUM CERTIFICATE OF COMPLIANCE CERTIFICATE OF FILING AND SERVICE

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TABLE OF AUTHORITIES Page(s) Cases: Allen v. McCurry, 449 U.S. 90 (1980)......................................................................................... 27 Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2nd Cir. 2006) ............................................................16, 36, 37 Blanch v. Koons, 467 F.3d 244 (2nd Cir. 2006) ......................................................... 19, 38, 47 Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903).................................................................................20, 49 Bond v. Blum, 317 F.3d 385 (4th Cir. 2003) ................................................................... 22, 33 Bouchat v. Baltimore Ravens, Inc. (Bouchat I), 241 F.3d 350 (4th Cir. 2000) .....................................................................5, 26 Bouchat v. Baltimore Ravens, Inc. (Bouchat II), 241 F.3d 350 (4th Cir. 2000), appeal after remand, Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514 (4th Cir. 2003) ........................................................................... 5 Bouchat v. Bon-Ton Dept. Stores, Inc. (Bouchat III), 506 F.3d 315 (4th Cir. 2007) .....................................................................5, 26 Bouchat v. Baltimore Ravens Ltd. Pship (Bouchat IV), 619 F.3d 301 (4th Cir. 2010) ..................................................................passim Bouchat v. Baltimore Ravens, 2011 WL 5445947 (D. Md. 2011) ................................................................... 6 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)................................................................................passim

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Castle Rock Entmt, Inc. v. Carol Publg Group, 150 F.3d 132 (2nd Cir. 1998) ........................................................................... 32 Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154 (3rd Cir. 1984) ......................................................................... 23 Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4,901) (Story, J.) ............................. 32 Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d 211 (4th Cir. 1993) ............................................................................. 22 Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).....................................................................22, 23, 50, 51 Herbert v. The Shanley Co., 242 U.S. 591 (1917).....................................................................20, 42, 48, 49 Hutto v. Davis, 454 U.S. 370 (1982)....................................................................................... 27 In re Microsoft Corp. Antitrust Litig., 355 F.3d 322 (4th Cir. 2004) ................................................................... 17, 27 Iowa State Univ. Research Found., Inc. v. American Broad. Cos., Inc., 621 F.2d 57 (2nd Cir. 1980) .......................................................................... 15 Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2nd Cir. 1998) .....................................................................38 Los Angeles News Serv. v. CBS Broad., Inc., 305 F.3d 924, amended on other grounds, 313 F.3d 1093 (9th Cir. 2002) ....................................................................... 16 Mathews v. United States, 485 U.S. 58 (1988)...................................................................................18, 27 Montana v. United States, 440 U.S. 147 (1979)....................................................................................... 27

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Morrison v. Nissan Co., 601 F.2d 139 (4th Cir. 1979) ......................................................................41 Nash County Bd. of Ed. v. Biltmore Co., 640 F.2d 484 (4th Cir. 1981) ......................................................................... 27 Nunez v. Caribbean Intl News Corp., 235 F.3d 18 (1st Cir. 2000) ........................................................................36 Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) .................................................................... 32, 37 Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)...........................................................................16, 20, 49 Sundeman v. Seajay Socy, Inc., 142 F.3d 194 (4th Cir. 1998) ..................................................................... passim Taniguchi v. Kan Pacific Saipan, Ltd., ___ U.S. ____, 132 S. Ct. 1997 (2012) ......................................................... 31 United States v. Tatum, 943 F.2d 370 (4th Cir. 1991) ......................................................................... 27 Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009) ......................................................................37 Weinberger v. Tucker, 510 F.3d 486 (4th Cir. 2007) ......................................................................... 27 Statutes: 17 U.S.C. 101 ........................................................................................................ 24 17 U.S.C. 106 ........................................................................................ 15, 23, 24 17 U.S.C. 106(1) ................................................................................................... 25 17 U.S.C. 106(3) ................................................................................................... 25 17 U.S.C. 106(5) ................................................................................................... 25

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17 U.S.C. 107 .............................................................................................passim 17 U.S.C. 113 ........................................................................................................ 25 17 U.S.C. 113(1) ......................................................................................... 15, 25 17 U.S.C. 113(a) ................................................................................................... 25 17 U.S.C. 501 .......................................................................................................... 1 17 U.S.C. 501(a) .......................................................................................... 15, 24 17 U.S.C. 502 .......................................................................................................... 1 17 U.S.C. 503 .......................................................................................................... 1 17 U.S.C. 504 .......................................................................................................... 1 28 U.S.C. 1291............................................................................................................ 1 28 U.S.C. 1338(a) ................................................................................................... 1 Other Authorities: H.R. Rep. No. 94-1476 (1976) ..........................................................................passim E. Johnson, The NFL, Intellectual Property, and the Conquest Of Sports Media, 86 N.D. L. REV. 759 (2010) .....................................................................21, 41 Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990)......................................................................... 32 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, 8.01[A] (2004) ............................................................................................ 23 Oxford English Dictionary, 3rd Ed., OXFORD UNIVERSITY PRESS (1989) .................................................... 31 Webster New International Dictionary, 3rd Ed. ................................................31, 34

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JURISDICTIONAL STATEMENT Jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1291. On January 2, 2013, the Court consolidated both of these cases for purposes of appeal. These are consolidated appeals from final judgments that disposed of all of the parties claims. Case No. 12-2548 On May 17, 2012, Frederick E. Bouchat filed, in the United States District Court for the District of Maryland (Northern Division) (Civil Action No. 1:12-cv01495-MJG), an action for copyright infringement under the copyright laws of the United States, 17 U.S.C. 501-504, and invoked jurisdiction pursuant to 28 U.S.C. 1338(a). On November 19, 2012, the District Court entered a final judgment in favor of Defendants against Plaintiff. (JA 217). An appeal was noted to this Court on December 14, 2012. (JA 219). Case No. 12-2543(L) On June 27, 2012, Frederick E. Bouchat filed, in the United States District Court for the District of Maryland (Northern Division) (Civil Action No. 1:12-cv01905-MJG), an action for copyright infringement under the copyright laws of the United States, 17 U.S.C. 501-504, and invoked jurisdiction pursuant to 28 U.S.C. 1338(a). (JA 10). On November 19, 2012, the District Court entered a final judgment in favor of Defendants against Plaintiff. (JA 214). An appeal was noted to this Court on December 14, 2012. (JA 218).

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STATEMENT OF THE ISSUES I. IS IT FAIR USE FOR THE NFL TO COMMERCIALLY EXPLOIT ON THE INTERNET AND NFL NETWORK ITS ORIGINAL INFRINGEMENT OF THE FLYING B LOGO? IS IT FAIR USE FOR THE BALTIMORE RAVENS TO COMMERCIALLY EXPLOIT IN THE RAVENS FOOTBALL STADIUM CLUB LEVEL LOUNGE ITS ORIGINAL INFRINGEMENT OF THE FLYING B LOGO? STATEMENT OF THE CASE In Case No. 12-2548 (1:12-cv-01495-MJG), Plaintiff Frederick E. Bouchat filed suit on May 17, 2012 against Defendants NFL Enterprises, LLC, NFL Network Services, Inc. and NFL Productions, LLC, d/b/a NFL Films, a subsidiary of NFL Ventures, L.P., for willful, continuing infringements of his copyright after they were previously adjudicated infringers of his copyright. He alleged that the Defendants were publicly displaying and infringing upon his copyright by the use of film segments appearing on nfl.com and on NFL Network. (JA 14-23). The District Court, however, entered a Memorandum and Order granting summary judgment on November 19, 2012 on the ground of fair use. (JA 212). The District Court issued a written opinion (Decision Re: Fair Use Issues), which it filed in these two cases consolidated on appeal, as well as a third involving EA Sports. (JA 176-211). The parties filed identical motion papers and evidentiary submissions in each of these two cases. Both consolidated cases were decided on the same evidentiary record. 2

II.

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The District Court found, as a matter of law, that the NFLs use of the infringing logo, in the video segments on nfl.com, surrounded by advertisements by such marketers as McDonalds, Google Chrome, Van Heusen, GMC and Gatorade, was fair use. The District Court also found that the same videos televised on NFL Network were fair use. (JA 199-203). The District Court reasoned that the videos were documentaries portraying history in biographical and comparative presentations. (JA 200). This transformative use outweighed all other factors under 17 U.S.C. 107, the fair use statute. (JA 200-02). The District Court also found that the Ravens, while the originator of the infringement, acted in good faith in believing that these uses were non-infringing. (JA 201). In Case No. 12-2543(L) (1:12-cv-01905-MJG), Plaintiff Frederick E. Bouchat filed suit on June 27, 2012 against the Baltimore Ravens Limited Partnership alleging that the Defendant was infringing upon his copyright. Plaintiff alleged that Defendant was prominently displaying the infringing logo on the M&T Bank Stadium Club Level during football games, and other events hosted at M&T Bank Stadium, for persons paying the price of admission. The District Court likewise granted summary judgment in favor of the Baltimore Ravens on the ground of fair use. (JA 215). The District Court reasoned that the Ravens display of the logo throughout the football stadiums indoor

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Club Level Lounge as dcor for its bar and food service stations that cater to its high-paying, premier clientele was consistent with a display in a museum and that there was no direct or immediate commercial advantage from the displays. (JA 193-95). In view of what it termed the substantial transformative use, the District Court concluded that the use in the Club Level Lounge was fair under the other 107 factors. (JA 194-96). The District Court also found that the Ravens, while the originator of the infringement, acted in good faith in believing that the uses in the Club Level Lounge were non-infringing. (JA 195). STATEMENT OF FACTS On approximately April 1, 1996, Bouchat sent the design, that he created as a logo for the new Baltimore Ravens football team, to John Moag, Chairman of the Maryland Stadium Authority, who was then sharing offices with Baltimore Ravens personnel, including David Modell, the team vice-president who headed the Ravens collaboration with National Football League Properties (NFLP) concerning the development of the Ravens logo. Bouchat signed the design which he sent to Moag and included the copyright symbol and the December 5, 1995 date of creation. Bouchat requested a letter of recognition and an autographed helmet if the Ravens used the logo he designed but never heard anything until the Ravens announced their logo on June 5, 1996. At that time, Bouchat, and other

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personnel at the Maryland Insurance Administration where he worked, recognized that it was Bouchats design because the logos were virtually identical. Bouchat v. Baltimore Ravens, Inc., 241 F.3d 350, 352-55 (4th Cir. 2000) (Bouchat I) (liability appeal). The Ravens and other NFL entities displayed and distributed the logo for the 1996, 1997 and 1998 football seasons, including on the football field turf, banners, players helmets, merchandise and tickets. The logo also appears in the video footage of the 1996, 1997 and 1998 Ravens films. Bouchat v. Baltimore Ravens Ltd. Pship, 619 F.3d 301, 305 (4th Cir. 2010) (Bouchat IV). Each Defendant in these cases or its privies was adjudicated an infringer in 2002 and 2003. See Bouchat I, 241 F.3d 350, appeal after remand, Bouchat v. Baltimore Ravens Football Club, Inc. (Bouchat II), 346 F.3d 514 (4th Cir. 2003); see also Bouchat v. Bon-Ton Dept. Stores, Inc. (Bouchat III), 506 F.3d 315 (4th Cir. 2007). Notwithstanding being adjudicated infringers and their public statements that they would cease using the logo, the Baltimore Ravens and NFL Films continued to make commercial use of the Flying B logo. The Ravens displayed the logo in videos on its Jumbotron video screen during home games, and NFL Films sold video footage to the public in the form of half-hour long Ravens yearly highlight films of the 1996, 1997 and 1998 seasons. For these uses, the Ravens and NFL Films were again adjudicated infringers. Bouchat IV, 619 F.3d at 313. Not

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daunted, the NFL and Baltimore Ravens continue to use the logo without Bouchats permission and have refused to cease using it. See Bouchat v. Baltimore Ravens, 2011 WL 5445947 (D. Md.). A. NFL Network and nfl.com

Appellee NFL Enterprises, LLC is the owner and operator of a website known as nfl.com. (JA 16). NFL Enterprises, LLC and NFL Network are the owners and operators of a television programming service and channel known as the NFL Network. (JA 18, 47). NFL Network offers various regular programs that have individual episodes, one is the Top Ten series and another is its Sound FX program. (JA 47-48; 198-99). Top Ten is a television series that first aired on the NFL Network in 2007. (JA 47). Each episode counts down the top ten items directly related to a particular subject. (JA 47). Approximately 119 episodes of Top Ten have aired on NFL Network. (JA 48). One episode is known as Top Ten: Draft Classes which provides segments on the all-time, ten best NFL draft classes. (JA 48, 198). This episode features a four-minute segment reflecting the Ravens inaugural 1996 draft class, which includes Ray Lewis, Jonathan Ogden and Jermaine Lewis. (JA 16-18, 48, 148, 198). It was televised on the NFL Network on April 14, 2012 and on an unknown number of occasions prior and subsequent to April 14, 2012. (JA 18, 148). During the telecast, various portions of highlights from the 1996 Ravens

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football season were shown in which the infringing logo is displayed and observed on the players helmets. (JA 18, 134, 148, 198). It also included a clip in which the Ravens previous home stadium, Memorial Stadium, was shown, and the copyrighted logo design was displayed on the stadium entrance. (JA 134). This episode was also available to the public on nfl.com, in a video known as Top Ten Draft Classes: 1996 Baltimore Ravens. (JA 16-17, 51, 134, 142-43). When accessed on nfl.com, the shows online video includes paid advertisements from such advertisers as, among others, McDonalds, Google Chrome, Van Heusen, GMC and Gatorade. (JA 134). Also, when the video Top Ten Draft Classes: 1996 Baltimore Ravens begins to play, an advertisement appears for the movie The Avengers and for Pizza Hut, prior to the segment as a lead-in to the program. (JA 134). Another episode of Top Ten is the Top Ten Draft Busts, which has aired on at least two occasions since April 22, 2012 and was televised prior to that date. (JA 19, 148). In this episode, one of the segments featured a former St. Louis Ram, Lawrence Phillips, who was a first-round draft pick in 1996. (JA 48, 198). The four-minute segment on Phillips concludes with a highlight clip in which the Ravens defense tackles Phillips, and the Flying B logo is depicted on the Ravens players helmets. (JA 48, 198).

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The NFL Network has another television series known as Sound FX, which first aired in 2009. (JA 48). Each episode of Sound FX consists of footage of the sights and sounds of football through players recorded via a microphone, e.g., the sights and sounds of players hits, grunts, yells, exhortations and other game sounds. (JA 48, 199). An episode, known as Sound FX: Ray Lewis, aired on May 23, 2012 on NFL Network and first aired on or about September 21, 2010. (JA 20-21, 147-48). This episode contains sounds of Ray Lewis during the game without outside commentary and virtually no voice-over and includes clips and highlights of Lewis in various Ravens football games during the 1996, 1997 or 1998 seasons. (JA 20, 199). In these clips, the Flying B logo is depicted on the players helmets. (JA 148, 199). This particular show was also viewed on nfl.com and was available on other Internet television hosts, such as hulu.com, through a licensing agreement issued by NFL Enterprises. (JA 21, 54, 198). B. The Club Level

The Baltimore Ravens present home stadium, M&T Bank Stadium, located in Baltimore, Maryland, contains three main levels of stadium seating for the general public.1 The first concourse, the 100 level, and the top concourse, the 500 level, are the two general seating areas for fans. (JA 146, 155). Prices for There are also two levels that contain 128 suites, with each suite accommodating approximately 20-24 people. (JA 151). Presumably, those with access to the suites also have access to the Club Level concourse.
1

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individual tickets in these sections start at $95 and $60 per seat, respectively. (JA 146; 155). The Baltimore Ravens website advertises that the Club Level decor features an historical perspective of football in Baltimore highlighting great games, teams and players from the areas rich football history. (JA 151). The second concourse of the stadium, the 200 level, generally known as the Club Level, provides premier seating for patrons outside in the stadium and a club lounge inside a closed, carpeted concourse. (JA 151). Individual tickets in this section start at $175 and increase to $355. (JA 146, 155). The enclosed concourse provides luxury seating, as well as other amenities including protection from the elements and cold weather and the challenged displays in this case. (JA 135-36, 146, 151, 155). Potentially, 8,196 people can sit in the Club Level, which is private and prohibits access and entry from those fans without tickets to sit in the Club Level. (JA 136, 139, 146, 151). Club Level seating is extra-wide to provide greater comfort. A Club Level ticket also comes with VIP parking. (JA 151). The Club Level Lounge provides an overall, upscale atmosphere for the Ravens exclusive clientele. It has a number of fully-staffed bars and concession areas located through its circular concourse. (JA 135, 146, 151). Television monitors are located throughout, including above the bar areas, to allow fans to watch the game inside. (JA 91-95, 97-99, 103, 135-36). Large leather sofas and chairs offer comfortable lounge seating; large tables are also available for people to

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comfortably consume their premier quality food and drink. (JA 108, 136, 151). By contrast, the 100 and 500 levels neither offer shelter from the elements nor provide lounge seating or tables for ease of consumption. (JA 146). The Club Level also provides exclusive, customized service and amenities to its Personal Seat License (PSL)2 owners and patrons, not available to those in other areas of the stadium. (JA 135-36, 146, 151, 161-64). The Ravens offer Private Club Level Customer Service, including a direct phone line and email address, for PSL owners. (JA 162). The Club Level also provides personal Club Level Concierges and Supervisors to assist the stadiums premier patrons in mak[ing] your game day experience on the Club Level enjoyable, from locating your favorite food to providing directions. (JA 162). As an additional courtesy to their premier fans, the Club Level allows PSL owners to add value to the ticket itself by making the barcode on the ticket work like a credit card. (JA 164). Essentially, the PSL owner pre-pays the cost of food and beverage to allow owners to entertain clients by adding a little extra to their game day experience. (JA 164). Club Level PSL owners also receive a 20% discount for merchandise purchased on game day or online. (JA 164).

A Personal Seat License, or PSL, is a privately-owned license to an individual seat, purchased for a fee, within the Ravens stadium which allows the owner to effectively own season tickets to that same seat every year.

10

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Another means of selling the upscale atmosphere is through the quality of concessions, which is substantially higher in the Club Level than that which is available in the 100 and 500 levels. Concessions and beverages are also more expensive in the Club Level. (JA 136, 146). The Club Level offers fully-stocked bars throughout its concourse, which serve beer, wine, cocktails and hard liquor to its patrons. (JA 146, 151). It also contains a number of Specialty Food Stations where one may purchase sandwiches of prime rib carved to order, deluxe burgers and Maryland-theme fare, including crab cakes. (JA 136, 164). In 2012, the Club Level opened two new specialty-food stations, a Steak and Chicken cheese steak station and a Nutty Butty Bavarian Ice Cream station to purchase quality desserts. (JA 164). Unlike the other areas of the stadium which are merely concrete, the Club Level interior is carpeted and decorated with depictions of Baltimore sports. (JA 73, 136-37, 151, 189-92). As advertised on its website, Club Level dcor highlighting great games, teams and players features enlarged photographs throughout the entire Club Level concourse depicting the Flying B logo. (JA 151). A depiction representing the year 1996 in Baltimore sports is located on the wall outside a womens restroom. The 1996 depiction prominently displays the old Memorial Stadium with an enlarged

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game ticket to the Baltimore Ravens inaugural game against the Oakland Raiders on September 1, 1996. Printed in the middle of that enlarged ticket is the Flying B logo. (JA 87-89, 117-118, 189). A photograph of Vinny Testaverde, the Baltimore Ravens first starting quarterback, prominently displays his helmet with the Flying B logo. (JA 112, 125, 137, 192). Jermaine Lewis, former special teams player, is photographed wearing the helmet with the Flying B logo displayed. (JA 114, 126, 137, 140, 192). In addition to the wall dcor, enlarged photographs are also displayed above the bars in the Club Level concourse that depict the Flying B logo in what is referred to as the Highlight Reel. (JA 73, 91-95, 97-106, 190). A photograph of Jonathan Ogden, former Ravens left tackle, taken at the time he was drafted in 1996, depicts Mr. Ogden sitting next to the Ravens former team owner Art Modell wearing a white shirt with the Flying B logo on it. (JA 99, 100, 120, 191). A photograph of Peter Boulware, former Ravens linebacker, depicts Mr. Boulware on the field, wearing his full uniform and helmet which prominently displays the Flying B logo. (JA 101-02, 121, 191).

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Above one bar is a photograph, noted to be on June 5, 1996, which portrays three Ravens players unveiling the team uniforms and new Ravens logo while holding their helmets which prominently display the Flying B logo. (JA 98, 119, 141, 190).

A photograph of Art Modell sitting with Brian Billick, former head coach, prominently displays the team helmet and the Flying B logo. (JA 105, 123, 191, 149).

A photograph of Vinny Testaverde, the same as the photograph located on the walls of the Club Level Concourse, which again displays the helmet and Flying B logo. (JA 106, 124).

A photograph of the new Ravens home stadium, now known as M&T Bank Stadium3, in 1998 which depicts an image of the field and contains the Flying B logo in the end zone. (JA 104, 122, 191).

C.

Licensed retailers

The NFLs and/or the Baltimore Ravens licensed, authorized retailers sell merchandise depicting the Flying B logo. Replayphotos.com, which holds itself out as the official Baltimore Ravens store, offers team photographs and other artwork for sale to the public. (JA 148). On replayphotos.com, a person may When the stadium opened in 1998, it was known as PSI Net Stadium. It was later renamed.
3

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purchase team photographs of the 1996 and 1997 Baltimore Ravens. (JA 148, 15253). The 1996 team photo displays the players and coaching staff, with two team helmets facing a football located on the ground, in the front center of the photograph. (JA 152). The helmet prominently displays the Flying B logo. (JA 152). The 1997 team photo also displays the players and coaching staff. (JA 153). The coach in the front center of the photograph is holding a football on his lap. (JA 153). Coaches to the left and right of him are each holding a team helmet that prominently displays the Flying B logo. (JA 153). EA Sports, an NFL Properties licensee, used the Flying B logo in the Madden NFL 2010, 2011 and 2012 video games to give the user an option to select a retro throwback helmet. (JA 149, 203-204.) SUMMARY OF ARGUMENT Defendants are serial, recidivist infringers who continue to use Plaintiffs copyrighted work without his permission, and have enlisted the courts to provide them refuge from the free market in the form of fair use. Defendants refuse to cease and desist their use of the infringing logo and continue to commercially exploit Plaintiffs intellectual property for their own financial gain under the guise of fair use. Defendants continue to use Bouchats intellectual property without a license and without his permission and willfully continue to commercially exploit his copyrighted work. Thus, this litigation ensued.

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Defendants previously exploited the copyrighted work as part of a mass infringement, and now they want to use the copyrighted work in perpetuity without paying for that right. As previously adjudicated infringers of the copyrighted work in question, Defendants have invoked the equitable doctrine of fair use, but with unclean hands. Once again, masquerading as historians and museum curators despite previously being adjudicated as recidivist infringers, Defendants in these cases would have the Court grant them a perpetual license and sanitize their prior infringements. The fair use doctrine, however, is not a license for corporate theft. Iowa State Univ. Research Found., Inc. v. American Broad. Cos., Inc., 621 F.2d 57, 61 (2nd Cir. 1980). The appropriating game films, photographs, game-day magazine and game ticket at issue came into existence between 1996 and 1998, and the appropriated logo was used in the identical way in which the logo was used in 1996-1998. It is undisputed that Defendants violated Bouchats copyright from 1996 through 1999, when they displayed and distributed the very same appropriating works that are at issue in this case. Bouchat has exclusive rights under 17 U.S.C. 106 & 113(1) to display, distribute and reproduce his logo design, and Defendants display, distribution and reproduction of it violates his copyright by virtue of 17 U.S.C. 501(a) (Add 5), unless the use of his work is subject to the fair use exception set forth in 17 U.S.C. 107 (Add 3). In assessing this affirmative

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defense, a court is required to determine whether there is fair use based on the four mandatory, non-exclusive factors set forth in 107. Section 107 provides, in pertinent part: In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--(1) the purpose and character of the use [of the copyrighted work]. . Id.; see also Sundeman v. Seajay Socy, Inc., 142 F.3d 194, 202 (4th Cir. 1998) (The first factor to be considered is the purpose and character of the challenged use .). Most important to the courts analysis of the first factor is the transformative nature of the work. Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 608 (2nd Cir. 2006). Transformative works lie at the heart of the fair use doctrines guarantee of breathing space within the confines of copyright. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (citing Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 478-80 (1984) (Blackmun, J., dissenting). Thus, the most important component of the inquiry into the purpose and character of the use is whether the use adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message thereby making it transformative. Los Angeles News Serv. v. CBS Broad., Inc., 305 F.3d 924, 938 (quoting Campbell, 510 U.S. at 579), amended on other grounds, 313 F.3d 1093 (9th Cir. 2002); accord Sundeman, 142 F.3d at 202 (quoting Campbell, 510 U.S. at 578-79). 16

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In Bouchat IV, the Court held that the NFLs and the Ravens commercial exploitation of their original infringement of the copyrighted work was not fair use. Id. at 309-13. This Court rejected the District Courts conclusion that the use of highlight films from the 1996, 1997 and 1998 Ravens seasons was primarily historic and held that the use was not transformative. Id. at 309, 311. While the videos add to the historical record of Ravens play, the use of the logo in those films simply fulfilled its purpose of identifying the team. Id., at 309. The football-team logo was still used as it was before, a football-team logo. Id. The Court concluded that [t]he core commercial purpose of the highlight films does not align with the preambles protected purposes of comment, news reporting, research, and the like. Id., at 308. The District Court employed virtually the same rationale in the instant cases as was previously rejected and reversed in Bouchat IV. This Court in Bouchat IV specifically rejected that the dramatic editing, music, narration and historical purpose transformed the use of the infringing logo in highlight game films. Id., at 309. There is no material difference between Defendants use of highlight films in Bouchat IV and in these cases. Defendants are thus barred by the principle of issue preclusion from re-litigating the issue of whether commercial exploitation of the game films is fair use. In re Microsoft Corp. Antitrust Litig., 355 F.3d 322, 326 (4th Cir. 2004). Alternatively, to the extent that issue preclusion is not applicable,

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the holding in Bouchat IV controls the issue, under the principle of stare decisis. Mathews v. United States, 485 U.S. 58, 66-67 (1988) (bow[ing] to stare decisis) (Brennan, J., concurring). Furthermore, these television programs are not transformative and do not alter or edit the infringing work, but rather they directly display the Flying B logo in the same manner as the originating, infringing work. The programs each use film highlights taken from football games in which the logo identifies the Baltimore Ravens. The Court, in Bouchat IV, held that the use of the copyrighted work in [t]he lobby of the Ravens headquarters [which] has an area that is dedicated to the history of the team for which no fee was charged transformed the purpose of the use because the display was non-commercial use in a museum setting. Id. at 31314. Most important, the use of the logo in a museum-like setting adds something new to its original purpose as a symbol identifying the Ravens. Id., at 314. [U]nlike in the highlight films, there is no clear-cut commercial purpose behind the use of the logo in the Ravens lobby. The lobby is open to the public, free of charge. Id. Contrasting the display in the lobby to the highlight films, the Court emphasized that the character of the use in the highlight films is particularly indefensible because the Ravens and the NFL are exploiting to their commercial advantage the original infringements. Id., at 314.

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Construing the record in a light most favorable to Plaintiff, the Ravens use of the infringing logo in the Stadium Club Level Lounge is not consistent with a museum, but rather is consistent with Circus Maximus or Oktoberfest. Unlike the little area of the lobby of the Ravens headquarters building dedicated to the history of football in Baltimore, the Club Level Lounge spans the interior of the entire stadiums second level, and the Ravens use the logo throughout the indoor Club Level Lounge as dcor and wall covering for its bar and food service stations that cater to its high-paying, premiere clientele. (JA 135-36, 14647). Without a doubt, this is no museum-like setting, but only a new way to exploit the prior infringements. Blanch v. Koons, 467 F.3d 244, 251-54 (2nd Cir. 2006) (We have declined to find a transformative use when the defendant has done no more than find a new way to exploit the creative virtues of the original work). In most of the photographs displayed in the Club Level Lounge, similar to the yearly highlight films, [a] football player wearing a helmet with the Flying B logo is readily identified as a football player for the Ravens. Bouchat IV, 619 F.3d at 309. In other photographs in the Club Level Lounge, [t]he stadium field painted with the Flying B logo identifies it as the home field of the Ravens football team. Id. The logo on the ticket in the football collage identifies that

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ticket with the Ravens, as it did in 1996. Similarly, the written commentary found amongst the photographs reflects the verbal commentary in the yearly highlight films. Either way, the logo is still being used as a logo. Id. Construing the record in a light most favorable to Plaintiff, the Defendants are commercially exploiting the original infringement in the Club Level Lounge, as an integral part of its game day revenue engine and entertainment package for its well-heeled patrons, as befits the great showmen and entertainers that the NFL is. The District Courts conclusion that the lounge displays are not part of the entertainment package for which the Club Level patrons pay for admission appears to not only be based on a construction of the record in a light most favorable to the moving party, but is incorrect as a matter of law under well-established and longstanding precedent. Bouchat IV, 619 F.3d at 308; Herbert v. The Shanley Co., 242 U.S. 591, 594-95 (1917); Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52 (1903); accord Campbell, 510 U.S. at 582-83 (quoting Bleistein); cf. Sony Corp., 464 U.S. at 446-47 n.28. The previously adjudicated infringers core commercial purpose in exploiting their prior infringement does not align with the protected purposes of 107. See Bouchat IV, 619 F.3d at 308, 311, 314. Construing the record in a light most favorable to Bouchat as the nonmoving party, the District Court's conclusion that the NFL acted in good faith is unwarranted based on the record in this case. (JA 201). The Ravens, at this early

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stage of the case and as proponents of the affirmative defense of fair use, have the burden of production of evidence on this key equitable fact, particularly given this Courts finding that it was not an innocent infringer. See id., at 311, 314. To the contrary, the record suggests that the commercial video displays are part of an emerging pattern that the Baltimore Ravens and its NFL partners are commercially exploiting the infringing logo in the sale of team photographs, the Madden NFL video games and NFL highlight films, a pattern from which a reasonable person could reasonably infer bad faith, particularly given the prior adjudications of infringement. The NFLs resurgent commercial exploitation of its prior adjudicated infringements suggests a bad faith plan to incrementally increase future use of the infringing logo and do an end run around the prior finding of infringement. E. Johnson, The NFL, Intellectual Property, and the Conquest Of Sports Media, 86 N.D. L. REV. 759, 770-73 (2010) (discussing NFLs extensive and far-reaching efforts to control all aspects of intellectual property associated with the game). Thus, material facts are in dispute and summary judgment was inappropriate. On the record in this case, the logo is still used as a logo, and all four factors weigh in favor of Bouchat, the copyright owner. Beyond the four statutory factors, however, [f]air use is an equitable rule of reason, for which no generally applicable definition is possible. Sundeman, 142 F.3d at 202 (quoting H.R. Rep.

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No. 94-1476, at 65 (1976)). Defendants, however, are not innocent third parties chronicling the history of football or logos, or some other party unrelated to Defendants infringement. Defendants are adjudicated infringers of the very same works at issue in this case, and the mere passage of time bestows no transformation of use upon the copyrighted work. As such, Defendants present desire to use the infringing work for their own benefit is the antithesis of fair use. ARGUMENT STANDARD OF REVIEW Fair use is a mixed question of law and fact. Sundeman, 142 F.3d 194, 201 (quoting Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560 (1985)). The standard of review for the District Courts ruling on the motions for summary judgment is a de novo review of the factual record, applying the same standard by which the District Court was bound to determine whether it erred as a matter of law. Bond v. Blum, 317 F.3d 385, 393 (4th Cir. 2003) (de novo, applying the same standard that the district court was required by law to apply for granting the motion for summary judgment). In reviewing the evidence related to a motion for summary judgment, the Court will consider all evidence and draw all permissible inferences from the underlying facts in the light most favorable to the party opposing the motion. Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d 211, 214 (4th Cir. 1993).

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DISCUSSION OF THE ISSUES The 1976 Copyright Act, 17 U.S.C. 106, confers a bundle of exclusive rights to the owner of the copyright. Harper & Row, 471 U.S. at 546. The fundamental and exclusive rights accorded to a copyright owner are to do and to authorize any of the activities specified in the six numbered clauses of 106. 17 U.S.C. 106. (Add. 1). The exclusive rights encompassed by these clauses, although closely related, are independent of each other, and they can generally be characterized as rights to copy and adapt and to publicly distribute and display. Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749 F.2d 154, 158 (3rd Cir. 1984); H.R. Rep. No. 94-1476 at 61, reprinted in 1976 U.S.C.C.A.N. 5659, 56745; see also 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, 8.01[A], at 8-17 to 8-18 (2004). Section 106 provides, in pertinent part, that the owner of a copyright, such as Bouchat, has the exclusive rights to do and authorize any of the following: (1) to reproduce the copyrighted work in copies; * * * * (3) to distribute copiesof the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; [and] * * * * (5) to display the copyrighted [pictorial] work publicly; * * * * 17 U.S.C. 106. (Add. 1).

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Anyone who violates one of these rights is an infringer of the copyright by virtue of 17 U.S.C. 501(a). One exception, however, is that a fair use of a work, as provided by 17 U.S.C. 107, is not an infringement. The four mandatory factors that a court must consider in determining whether a given use of a copyrighted work constitutes fair use are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. 107 (Add. 2); see also Sundeman, 142 F.3d at 202. Beyond the four statutory factors, however, [f]air use is an equitable rule of reason, for which no generally applicable definition is possible. Sundeman, 142 F.3d at 202 (quoting H.R. Rep. No. 94-1476, at 65 (1976)). These four factors may not be treated in isolation, one from another but rather shall all be explored and the results weighted together. Id. (quoting Campbell, 510 U.S. at 578). The copyrighted work at issue here is a pictorial work as defined by 17 U.S.C. 101. The exclusive right to reproduce a copyrighted pictorial work under 106 includes the right to reproduce the work in or on any kind of article, whether

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useful or otherwise. 17 U.S.C. 113(a) (Add. 3). Section 113 makes clear that Congress intent was to afford protection to the copyright owner against the unauthorized reproduction of his work in useful as well as nonuseful articles. H.R. Rep. No. 94-1476 at 105, reprinted in 1976 U.S.C.C.A.N. 5659, 5720. From 1996 to 1998, when the Ravens placed Bouchats copyrighted logo on their helmets, field and game tickets, Defendants violated Bouchats exclusive right to reproduce his copyrighted work under 106(1) and 113(1). See Bouchat IV, 619 F.3d at 306. When distributing tickets or Game Day magazines between 1996 and 1998, Defendants violated Bouchats rights under 106(3). Id., at 31314. Defendants violated his rights under 106(5) when they publicly displayed the logo at football games, whether affixed to the helmets or on the field. Id., at 308. Similarly, when Defendants captured games on film and in photographs in 1996, 1997 and 1998, they violated Bouchats 106(1) right to reproduction. See id., at 313-14. Defendants violated his 106(3) right to distribute when they sold the films or photographs, as well as his 106(5) right to display when they publicly displayed the films or photographs. See id., at 308. Essentially, each game the Ravens played from 1996 through 1998 was an infringing event, staged by Defendants and part of a mass infringement that was ultimately captured on film and in photographs.

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Each Defendant, or its privies, was adjudicated an infringer in 2002 and 2003. See Bouchat I, supra, 241 F.3d 350; Bouchat III, 506 F.3d at 324; Bouchat IV, 619 F.3d at 306. Defendants were again adjudicated infringers for selling, and offering to sell, highlight game films to the public in 2012, after remand from this Court. Bouchat IV, supra, 619 F.3d at 308-14. I. IT IS NOT FAIR USE FOR THE NFL TO COMMERCIALLY EXPLOIT ON THE INTERNET AND THE NFL NETWORK ITS ORIGINAL INFRINGEMENT OF THE FLYING B LOGO. While the films no doubt add to the historical record of Ravens play, the use of the logo in those films simply fulfilled its purpose of identifying the team. The logo continues to fulfill that purpose whenever a highlight film is shown. . . . . The Flying B logo on the helmets of one team helps . . . identify the team as the Ravens. Bouchat IV, 619 F.3d at 309. A. THE NFL IS BARRED BY ISSUE PRECLUSION FROM ASSERTING FAIR USE FOR DISPLAYING THE FLYING B LOGO IN GAME FILMS ON THE INTERNET AND THE NFL NETWORK OR, ALTERNATIVELY, THIS CASE IS CONTROLLED BY PRINCIPLES OF STARE DECISIS AS THIS COURT HAS ALREADY DETERMINED THAT THE NFLS COMMERCIAL EXPLOITATION OF ITS ORIGINAL INFRINGEMENTS IN GAME FILMS FROM THE 1996, 1997 AND 1998 RAVENS SEASONS IS NOT FAIR USE. A logo is an identifying symbol. The Flying B logo was designed and used as a symbol identifying whatever or whomever it adorned with the Baltimore Ravens football organization. A football player wearing a helmet with the Flying B logo is readily identified as a football player for the Ravens. The stadium field painted with the Flying B logo identifies it as the home field of the Ravens football team. 26

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There is no transformative purpose behind the depiction of the Flying B logo in the highlight films. 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. The simple act of filming the game in which the copyrighted work was displayed did not add[ ] something new to the logo. Bouchat IV, 619 F.3d at 309. The issue of the NFLs commercial exploitation of game footage from the Ravens 1996, 1997 and 1998 seasons was decided in Bouchat IV, at which time the Court held it was not fair use. Id., at 313-14. Although there was a dissenting opinion by Judge Niemeyer inviting Supreme Court review, id., at 322, the NFL elected to not file a petition for writ of certiorari with the Supreme Court. The NFL is thus barred from re-litigating this issue. Nash County Bd. of Ed. v. Biltmore Co., 640 F.2d 484, 486, 490 (4th Cir. 1981) (quoting Montana v. United States, 440 U.S. 147, 153 (1979)); Allen v. McCurry, 449 U.S. 90, 94-5 (1980); United States v. Tatum, 943 F.2d 370, 382 (4th Cir. 1991); Weinberger v. Tucker, 510 F.3d 486, 493 (4th Cir. 2007); In re Microsoft Corp. Antitrust Litig., 355 F.3d at 326. To the extent that issue preclusion is not applicable to the holding in Bouchat IV, principles of stare decisis control the issue. Mathews, 485 U.S. at 66-67 (bow[ing] to stare decisis) (Brennan, J., concurring); Hutto v. Davis, 454 U.S. 370, 374-75 (1982).

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In Bouchat IV, this Court considered the Ravens display of the infringing logo in a short highlight film from the 1996 season on its large video screen during home games and found that it was part of an entertainment package included in the price of tickets to the games. Id., at 306, 309. The Court also considered the NFLs public sale of half-hour long Ravens annual highlight films of the 1996, 1997 and 1998 seasons to be objects of entertainment, marketed and sold to the public on the NFLs website. Id., at 308. This Court rejected the District Courts conclusion that the use of the highlight films was primarily historic and, transformative. Id., at 309. The use of the logo in the videos was still to fulfill the logos purpose of identifying the team. Id. The Court concluded that [t]he core commercial purpose of the highlight films does not align with the preambles protected purposes of comment, news reporting, research, and the like. Id., at 308. [T]he character of the use in the highlight films is particularly indefensible because the Ravens and the NFL are exploiting to their commercial advantage the original infringements. Id., at 313-14. In this case, the NFL owns and operates its own website and television network where it displays the infringing work on programs it creates and produces and from which it directly gains a financial benefit through the use of paid advertisements. (JA 16-18, 49-50, 134). The programs at issue consist of excerpted footage and film from prior professional football games, which make the

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programs essentially highlight videos. The television series and episodes at issue, in which clips of Ravens players helmets are visibly seen, are materially indistinguishable in nature from those highlight videos that were the subject of Bouchat IV. As noted above, Bouchat IV involved a video with highlights of footage from a previous game between the Baltimore Ravens and the St. Louis Rams, played on October 27, 1996, in which the Flying B logo was visibly seen and displayed on the Jumbotron screen at M&T Bank Stadium during a football game. Id., at 308-09. Also at issue in Bouchat IV were the annual highlight videos, one from each season between 1996 and 1998, which lasted approximately thirty minutes and included numerous clips of plays, along with historical commentary and discussion of the plays and players and on each of the respective seasons, as well as the return of professional football to Baltimore. Id., at 306-07. The films in Bouchat IV were entitled: 1996 Season Highlight Baltimores Back; 1997 Baltimore Ravens Season Highlight Breaking New Ground; and 1998 Baltimore Ravens Season Highlight Foundation for the Future. Bouchat IV, Joint Appendix, pages 104-06, Court of Appeals Record Number 08-2381.4 All of these works were determined to be an infringement upon Bouchats copyright in Bouchat IV.

The DVDs were submitted to the Court as part of the joint appendix in Bouchat IV.

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The programs at issue in this case also contain highlight footage in the form of a television series. The Sound FX series contains no outside commentary and virtually no voice over, only the footage and sounds of the game and micd players. (JA 48). It is sheer entertainment and, when construed in a light most favorable to Plaintiff, is not a documentary. The Top Ten series includes commentary similar to that contained in the yearly highlight videos. (JA 47-48, 148). Top Ten Draft Classes even contains identical footage from the 1996 yearly highlight film which was the subject of Bouchat IV, and adjudicated by this Court as infringing.5 (JA 134). Top Ten Draft Classes also contains other highlights from the 1996 Ravens football games and depicts the Flying B logo. (JA 148). The second infringing work, Top Ten Draft Busts, also uses the Flying B logo to identify a player as a Baltimore Raven during a game against the proposed draft bust, Lawrence Phillips. (JA 47-48, 148). The third infringing work, Sound FX: Ray Lewis, focuses exclusively on Ray Lewis as a Baltimore Raven and contains highlights from Lewis first three seasons, wherein the Flying B logo is seen. (JA 47-48, 147). As in Bouchat IV, the logo is used in each instance on a helmet in the footage, as a symbol to identify the player on the field as a Baltimore Raven, as well The identical footage displays the logo on the side of Baltimores old Memorial Stadium and accompanied by the commentary welcome to Memorial Stadium...the old girl is back in town. Yes, its been since December of 83 that a Baltimore team has played pro football here. Compare Physical Exhibit 1 (NFL DVD 0002) (JA 48) with Bouchat IV, Joint Appendix, page 105, Court of Appeals Record Number 08-2381.
5

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as in the footage of Memorial Stadium where it is used to identify the Ravens stadium. (JA 134). These television programs, whether viewed on television or on the Internet, were created for the purpose of entertainment for the NFLs fans and followers. (JA 47). The District Court summarily labeled the series in question as documentaries and thereby afforded them transformative status. (JA 197-202). Documentary is defined as [f]actual, realistic; applied esp. to a film or literary work, etc., based on real events or circumstances, and intended primarily for instruction or record purposes. Oxford English Dictionary, 3rd Ed., OXFORD UNIVERSITY PRESS (1989).6 Bouchat disputes that the videos in question are documentaries. Top Ten, a television series with individual episodes about particular topics, in this instance a draft class and a draft bust, includes commentary from various journalists, players or sports analysts in which they weigh in and provide the reasoning for the pick. (JA 47). Thus, this involves discussion on an opinion that is subject to debate, not a factual report or record. The Sound FX series contains no outside commentary and does not provide any factual record or report but rather records the players via a microphone to allow the viewer to see and hear

The Supreme Court, in determining the ordinary meaning of words, recognizes both the Oxford English Dictionary and Websters Third New International Dictionary as authoritative sources, as well as others. Taniguchi v. Kan Pacific Saipan, Ltd., ___ U.S. ____, 132 S. Ct. 1997, 2002-2004 (2012).

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players hits, grunts, yells, exhortations and other game sounds. (JA 48). Construing the record in a light most favorable to Plaintiff, these programs are not documentaries. However, if these episodes are considered documentaries, then the yearly highlight films adjudicated in Bouchat IV are documentaries of the same ilk. The District Court found that use of the logo in the television shows at issue was substantially transformative so as to outweigh those other fair-use factors, including its core commercial use that would weigh against fair use.7 (JA 199-

As noted in Campbell, a transformative work is one that alters the original work with new expression, meaning, or message. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1164-65 (9th Cir. 2007) (holding that Internet search engines use of thumbnail images of copyrighted photographs was fair use) (quoting Campbell, 510 U.S. at 579). A use is considered transformative only where a defendant changes a plaintiffs copyrighted work or uses the plaintiffs copyrighted work in a different context such that the plaintiffs work is transformed into a new creation. Id., at 1165. If the secondary use adds value to the original-if [copyrightable expression in the original work] is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings--this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. Castle Rock Entmt, Inc. v. Carol Publg Group, 150 F.3d 132, 142 (2nd Cir. 1998) (holding The Seinfeld Aptitude Test, a trivia quiz book devoted exclusively to testing its readers recollection of scenes and events from the comedy television series Seinfeld, was not fair use and quoting Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990) (cited throughout the Campbell opinion)); Folsom v. Marsh, 9 F. Cas. 342, 345 (C.C.D. Mass. 1841) (No. 4,901) (Story, J.) (There must be real, substantial condensation of the materials, and intellectual labor and judgment bestowed thereon; and not merely the facile use of the scissors; or extracts of the essential parts, constituting the chief value of the original work.), cited as foundational authority for fair use analysis in Campbell, 510 U.S. at 578-79; Sundeman, 142 F.3d at 206 n.18 (citing Campbell, 510 U.S. at 587-88) (The more material copied directly from a copyrighted work tends to show a lack of transformative character.. .).

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202). The District Court employed virtually the same rationale concerning transformation in this case that was previously rejected by this Court in Bouchat IV and stated: [t]he Documentaries are substantially transformative uses. Each offers commentary, criticism, and documents historical facts. Each use in these films adds something new by representing factual content, documenting and commenting on historical events, or functioning as a biography or career retrospective. The Flying B Logo, to the extent seen in the Documentaries, is being used not for its expressive content, but rather for its...factual content. Bouchat IV, 619 F.3d at 314 (quoting Bond, 317 F.3d at 396). (JA 200-01). This Court expressly rejected the notion that dramatic editing, music, narration and historical purpose transformed the use of the infringing logo: 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. While the films no doubt add to the historical record of Ravens play, the use of the logo in those films simply fulfilled its purpose of identifying the team. The logo continues to fulfill that purpose whenever a highlight film is shown. . . . . The Flying B logo on the helmets of one team helps him identify the team as the Ravens. The logo plays the same role . . . . Its purpose is not transformed in the highlight film, viewed some fourteen years later.

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Simply filming football games that include the copyrighted logo does not transform the purpose behind the logo's use into an historical one. Defendants point to the dramatic editing, music, and narration in the highlight films in an attempt to show a transformative use for the logo. But none of these effects transform the purpose behind the display of the logo. The narrator in the films never comments on the controversy surrounding the use of the Flying B logo. Nor are the films a documentary on the history of the Ravens logo. Instead, the films simply capture highlights of three Ravens seasons and necessarily portray the Flying B logo as it was actually used-to identify the Ravens team. Bouchat IV, 619 F.3d at 309. Construing the record in a light most favorable to Bouchat, the videos here are merely sports entertainment, whether or not labeled as documentaries.8 Both the Top Ten and Sound FX programs are television shows with individual episodes, intended to provide entertainment to NFL fans and followers. (JA 47). The Top Ten episodes each incorporate sports commentary about a particular topic, in this instance the best draft classes and biggest draft busts, to expound upon the basis for making this particular list. Sound FX provides an inside look into professional football from the sights and sounds of an individual player, Ray Lewis. No commentary from outside resources, factual record or reporting is included in Sound FX, which makes it anything but a documentary. The Webster New International Dictionary (Third Edition) defines entertainment as [t]he act of diverting, amusing or causing ones time to pass agreeably.
8

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These television programs are not transformative and do not alter or edit the infringing work, but rather they directly display the Flying B logo in the same manner as the original infringing work. The shows each use film highlights taken from football games in which the logo is meant to identify the Ravens. Defendants gain commercially from the use of such programs through paid advertisements they receive that air during the telecast or on the Internet. (JA 49-50). In substance, the use of the highlights and clips is no different from that which was already adjudicated in Bouchat IV and found to be infringing. Every depiction of the Flying B logo in these programs is, therefore, a commercial exploitation and not eligible for fair use status by virtue of issue preclusion or the binding precedent of this Court. B. THE NFLS DISPLAY ON THE INTERNET AND THE NFL NETWORK OF VIDEOS WITH THE INFRINGING LOGO IN GAME FILMS FROM THE 1996, 1997 & 1998 RAVENS SEASONS IS NOT FAIR USE BECAUSE IT IS A COMMERCIAL, NON-TRANSFORMATIVE EXPLOITATION OF THE NFLS ORIGINAL INFRINGEMENT.

As in Bouchat IV, there is no transformative use of the logo here as the core commercial purpose has not changed. There is no commentary on the logo or the logos history. The logo, as in Bouchat IV, is being used to identify the players as Ravens. While the videos here add to the historical record of Ravens play, the use of the logo in those films simply fulfilled its purpose of identifying the team. Bouchat IV, 619 F.3d at 309. Furthermore, the District Court found that the NFLs 35

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use of the videos without a doubt was commercial and that the NFL earns income by making them available to viewers. (JA 200). Therefore, as in Bouchat IV, this core commercial purpose of the...films does not align with the preambles protected purposes of comment, news reporting, research, and the like. Id., at 308. Relying on Campbell, 510 U.S. at 584-85, however, the District Court concluded that a sufficiently transformative use, such as the parody in Campbell, could be fair use despite obviously commercial and exploitive unauthorized use. (JA 200). In every case in which fair use of the entire copyrighted work has been found to be transformative, the appropriated work was itself the subject of a controversy or commentary or was physically altered to such an extent that its original expressive content was altered or eclipsed. See, e.g., Campbell, 510 U.S. at 577-94 (1994) (rap parody of Roy Orbison song constituted fair use where lyrics were altered and parodied); see also Nunez v. Caribbean Intl News Corp., 235 F.3d 18, 22-23 (1st Cir. 2000) (publication of professional photographers photographs of Miss Puerto Rico Universe posing naked that were originally intended to appear in modeling portfolios but had become the subject of a public controversy and were used by the alleged infringer newspaper in conjunction with reporting and editorial commentary on the photographs and the controversy); Bill Graham Archives, 448 F.3d at 608-12 & n.3&4 (use of copyrighted concert

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posters and concert tickets by a lengthy, creative biographical work to trace the history of a rock band, and display of the copyrighted works in significantly reduced size and format arranged in a creative fashion to illustrate and explain historical event and in such a fashion that the details of the images were barely visible);9 Perfect 10, 508 F.3d at 1164-65 (holding that Internet search engines use of thumbnail images of copyright photographs was fair use); Vanderhye v. iParadigms, LLC, 562 F.3d 630, 639 (4th Cir. 2009) (use was transformative where school converted student papers to digital code and archived them in that format for purpose of evaluating originality of school papers in order to prevent plagiarism); Sundeman, 142 F.3d at 202-03 (scholars substantial quotations and paraphrasing from Blood of My Blood were for the purpose of scholarly appraisal of Blood of My Blood from a biographical and literary perspective[in that] she attempted to shed light on Rawlings development as a young author, review of the quality of Blood of My Blood and comment on the relationship

In Bill Graham, the Courts conclusion of transformative purpose was strengthened by use of the images by the Illustrated Trip in significantly reduced size in combination with a prominent timeline, textual material, and original graphical artwork, to create a collage of text and images on each page of the book. The images were displayed at angles and the original graphical artwork is designed to blend with the images and text[and the] layout ensures that the images at issue are employed only to enrich the presentation of the cultural history of the Grateful Dead. Id., at 610-11. Additionally, the format of the posters was substantially reduced in the manner used in the Illustrated Trip so that the details of the images were barely visible.

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between Rawlings and her mother); Blanch v. Koons, 467 F.3d at 251-54;10 Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2nd Cir. 1998).11 In this case, however, the appropriating work does not add anything new to the logo and The Court described Koons Easyfun-Ethereal painting series, which included the appropriating work, as collages of images that Koons culled from advertisements and his own photographs, and scanned into a digital format from which he superimposed the images against backgrounds of pastoral landscapes and then printed in color and used as templates for application of paint to billboardsized paintings (10 x 14). Id., at 247. The Court described the appropriating painting at issue, Niagara, as depicting four pairs of womens feet and lower legs dangling prominently over images of confections--a large chocolate fudge brownie topped with ice cream, a tray of donuts and a tray of apple danish pastries-with a grassy field and Niagara Falls in the background. Id. In Leibovitz, the Second Circuit affirmed summary judgment in favor of the defendant on the ground of fair use. Leibovitz was the creator of a photograph of an actress, Demi Moore, that appeared on the cover of Vanity Fair magazine, depicting Moore, who was pregnant at that time, in a nude profile with her right hand and arm covering her breasts and her left hand supporting her distended stomacha pose evoking Botticellis The Birth of Venus. Leibovitz, 137 F.3d at 111. The appropriating work was a teaser for an advertising campaign for a slap-stick comedy film entitled Naked Gun 33: The Final Insult, starring Leslie Nielsen. Paramount commissioned another photograph to be taken of a nude, pregnant woman, posed in the exact same manner as Moore, which was then digitally enhanced to match the skin tone and shape of Moores body in the Leibovitz photograph. The creator of the digital image then superimposed on the models body a photograph of Nielsens face, with his jaw and eyes positioned roughly at the same angle as Moores, with her serious look replaced by Nielsens mischievous smirk. Id. An advance of the March 1994 release date of the film, depicting Nielsen as the pregnant Demi Moore, proclaimed DUE THIS MARCH. The Second Circuit concluded that the ad plainly added something new and qualified as a transformative work. Id., at 114. Although the Court indicated that whether it commented on the original was a somewhat closer question, the ad was a ridicule and a parody of the copyrighted work that served as sufficient comment to tip the first factor in favor of fair use under Campbell. Id.
11 10

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does not alter the logo with some new expression, meaning or message. Rather, the exact appropriating work is used by the same infringers, not some unrelated third party, as part of the entertainment package it offers the public. See Bouchat IV, 619 F.3d at 308, 311. C. THE DISTRICT COURT FAILED TO ASSESS THE NATURE AND EXTENT OF TRANSFORMATION, IF ANY, AND WEIGH IT AGAINST THE DEGREE OF COMMERCIALITY AND OTHER 107 FACTORS.

As before, important to the analysis is whether and to what extent the new work is transformative. Id., at 308 (quoting Campbell, 510 U.S. at 579). The District Court did not assess to what extent the uses were transformative but rather simply declared that the uses were substantially transformative, without any analysis or rationale for its conclusion. (JA 194-95). To the extent that there is arguably some transformation, the District Court did not weigh the degree of transformation against the commerciality of the use and the other 107 factors. (JA 197). Construing the record in a light most favorable to the copyright owner, the core commercial purpose does not align with the protected purposes of 107. Bouchat IV, 619 F.3d at 308. Fair use of Bouchats logo could potentially include the use of the video clips in a sports museum from which the original infringers obtain no commercial benefit. Fair use might be when a local Baltimore television station, in a preSuper Bowl show, shows a short clip of Ray Lewis tackling San Francisco 49ers 39

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head coach, Jim Harbaugh, while he quarterbacked for the Indianapolis Colts in 1996. However, these are not the facts with which we are presented. What is presented is the original, adjudicated, recidivist infringer commercially exploiting its original infringement. D. DEFENDANTS ARE SERIAL INFRINGERS NOT ENTITLED TO THE BENEFIT OF A GOOD FAITH FINDING AS A MATTER OF LAW.

The doctrine of fair use continues to be applied as an equitable rule of reason, for which no generally applicable definition is possible. Id., at 308 (quoting Sundeman, 142 F.3d at 202). The Court found that Defendants acted in good faith even though they are recidivist infringers. (JA 201). The District Courts conclusion that the NFL acted in good faith is not supported by the facts in the record. As a proponent of the affirmative defense of fair use, the NFL had the burden of production for this key equitable fact, particularly at the onset of the litigation. Id., at 311, 314. It produced none. This Court previously held that the Ravens and the NFL were not innocent third parties. Id., at 311. The record reflects that the Internet and television displays were part of a pattern of the Baltimore Ravens and NFLs resurgent, commercial use of the infringing logo. There is evidence in the record reflecting commercial exploitation through the sale of team photographs, use of the retro option in Madden NFL video games and the sale of NFL yearly

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highlight game films. (JA 148-49, 152-53, 203-04). These commercial uses together give rise to an inference of bad faith on the part of the NFL, especially given the prior adjudications of infringement. It further indicates that the original infringers intend to incrementally increase use of the infringing logo in the future, even going so far as to televise entire games from the 1996 through 1998 season on the NFL Network. The NFL is acting in furtherance of its predatory mission and business model to control all aspects of intellectual property associated with professional football and is using its financial and market power to aggressively attempt to push the law of fair use beyond its outer limits. See Johnson, supra, 86 N.D. LAW REV. 759 at 770-71; see also Morrison v. Nissan Co., 601 F.2d 139, 141 (4th Cir. 1979) ([W]hen the disposition of a case turns on a determination of intent, courts must be especially cautious in granting summary judgment, since the resolution of that issue depends so much on the credibility of the witnesses, which can best be determined by the trier of facts after observation of the demeanor of the witnesses during direct and crossexamination.).

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II.

IT IS NOT FAIR USE FOR THE BALTIMORE RAVENS TO COMMERCIALLY EXPLOIT IN THE RAVENS FOOTBALL STADIUM CLUB LEVEL LOUNGE ITS ORIGINAL INFRINGEMENT OF THE FLYING B LOGO. The defendants' performances are not eleemosynary. They are part of a total for which the public pays, and the fact that the price of the whole is attributed to a particular item which those present are expected to order, is not important. . . . . If it pays it pays out of the public's pocket. Whether it pays or not the purpose of employing it is profit and that is enough. Herbert v. The Shanley Co., 242 U.S. 591, 594-95 (1917). This Court found in Bouchat IV that the display of a sheet of actual

inaugural season tickets and two photographs of the Ravens first draft picks was fair use because the Ravens displayed them in a museum-like setting, without commercial exploitation. The display in a museum-like setting added something new to transform the purpose of the use of the logo. Bouchat IV, 319 F.3d at 31314. The Court emphasized, however, by contrast, that the character of the use in the highlight films is particularly indefensible because the Ravens and the NFL are exploiting to their commercial advantage their original infringements. Id., at 314. In granting summary judgment, the District Court concluded that it was fair use for the Ravens to display the logo throughout the indoor Club Level Lounge as dcor for its bar and food service stations that cater to its high-paying, premier clientele. (JA 193). Relying upon Part IIIB of this Courts opinion in Bouchat IV, the District Court reasoned that this use was consistent with the fair use of 42

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copyrighted material in a museum and that there was no direct or immediate commercial advantage from the displays. (JA 193-95). In view of what the District Court termed the substantial transformative use, the District Court concluded that the uses in the Club Level Lounge were fair under the other 107 factors. (JA 195-97). In Bouchat IV, the Court held that the Ravens display of the infringing logo in discreet, dedicated portions of the lobby of its corporate headquarters, where it was displayed on a sheet of actual, inaugural season game tickets and two large photographs of the teams first ever, first-round draft picks, was not commercial exploitation of its original infringement and was fair use. Id., at 313-14. The use of the copyrighted work in [t]he lobby of the Ravens headquarters [which] has an area that is dedicated to the history of the team, for which no fee was charged, transformed the purpose of the use because the display was non-commercial use in a museum setting. Id., at 313-14. Most important, the use of the logo in a museum-like setting adds something new to its original purpose as a symbol identifying the Ravens. Id., at 314. [U]nlike in the highlight films, there is no clear-cut commercial purpose behind the use of the logo in the Ravens lobby. The lobby is open to the public, free of charge. Id.

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A.

M&T BANK STADIUM IS NOT A MUSEUM-LIKE SETTING.

The Ravens, as proponents of fair use and the motion, presented no evidence concerning the use of the Club Level Lounge on game days or during special events. The Ravens presented no evidence on the background of how or why the dcor of the Club Level Lounge was selected. Construing the record in a light most favorable to Plaintiff, however, the Club Level Lounge is anything but a museum-like setting. It is a fancy, upscale bar and concession stand and provides access to the Club Level stadium seating. Unlike the small, discreet area in the lobby of the Ravens headquarters building where no fee is charged for admission, the Club Level Lounge spans the interior of one entire stadium level and requires a hefty fee for admission. (JA 146, 155). The Ravens use of the logo throughout the indoor Club Level Lounge is for dcor and wall covering for its bar and food service stations that cater to its high-paying, premiere clientele. (JA 135-36, 14647). The Club Level Lounge is what its name reflects--an expensive bar or cocktail lounge--intended to create the upscale atmosphere and lifestyle not present in other areas of M&T Bank Stadium. Lest we forget, this is a football stadium, not the Smithsonian Institution. The Baltimore Ravens display the logo prominently throughout its Club Level Lounge in three distinct manners: (1) one segment of a display on a wall covering the year 1996 in Baltimore football, on an enlarged, inaugural game ticket, a Game

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Day Program and a photograph of the field; (2) photographs contained in a Highlight Reel display placed directly above the bars and televisions; and (3) photographs in adjacent lounge areas and walkways. Not everyone who attends a Ravens game at the stadium is permitted to enter the Club Level Lounge. (JA 136, 146). Access to the lounge requires a seat in the 200 or Club Level, which range in price from $175 to $355 for each individual, regular season game, nearly triple that paid by others. (JA 146, 155). The Ravens cannot demand a price tag that high without marketing and selling the upscale atmosphere. One way to do so is through the dcor, which is exclusive to the Club Level Lounge. The Baltimore Ravens website advertises as one of the Club Levels amenities that the Club Level decor features an historical perspective of football in Baltimore highlighting great games, teams and players from the areas rich football history. (JA 151). Another means to sell the upscale atmosphere is through better quality concessions and beverages. The Baltimore Ravens website advertises that the Club Level Lounge serves specialty foods and is equipped with full service bars, concierge services and breath-taking views of downtown Baltimore. (JA 146, 151). By email to the Ravens Club Level PSL owners, the team touts its seven professional concierges and updates the PSL owners of its new, specialty food offerings, one of which is the new Nutty Butty Bavarian Ice Cream Station located at Sections 206 and 224. (JA 161-64). Section 224 is also where the

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infringing logo is displayed on the inaugural game ticket, game day program and stadium photograph on the wall outside the womens restroom. (JA 87-89). The Ravens tout the Maryland-theme fare and even allow PSL owners the option to pre-pay value on their tickets to allow them to entertain clients, i.e., business associates, with an increased game day experience. (JA 164). The subject photographic displays and associated descriptions are an integral part of the Club Level bar where beer and whiskey are served. They are part of the upscale football ambience. The bar is named the Ravens Highlight Reel. Televisions sit atop the bar, ostensibly to allow patrons to watch the game live while warming up and imbibing. (JA 135-36). The other photographic displays are situated in nearby plush, leather seating areas, where well-heeled fans can come in from the cold or inclement weather to sit while they drink and eat the specialty food they purchased at the Club Level food and carving stations. (JA 135, 146). None of these amenities are available elsewhere. (JA 135, 146). Potentially, 8,196 people can sit in the Club Level,12 a far more exclusive club than that enjoyed by the remaining 62,000 ticket holders in the 100 and 500 levels. (JA 151).

According to http://www.destination-munich.com/oktoberfest-tent.html, the capacity of the different tent sizes at Oktoberfest in Munich range from 2,900 to 10,000 revelers, e.g., the capacity inside the Hacker-Festzelt tent is 6,950. If the Oktoberfest were an NFL event, the NFL would undoubtedly argue that it is an historical re-enactment or a museum-like setting.

12

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It is not fair use to utilize the previously adjudicated infringing logo as dcor to generate an upscale football atmosphere and ambience for high-paying patrons as part of the Ravens engine of profits. Without a doubt, this is no museum-like setting, and it is nothing more than a new way to exploit the prior infringements. Blanch, 467 F.3d at 251-54 (We have declined to find a transformative use when the defendant has done no more than find a new way to exploit the creative virtues of the original work). B. THE RAVENS DISPLAY OF THE INFRINGING LOGO IN THE STADIUM CLUB LEVEL LOUNGE IS NOT FAIR USE BECAUSE IT IS A NON-TRANSFORMATIVE, COMMERCIAL EXPLOITATION OF THE NFLS AND RAVENS ORIGINAL INFRINGEMENT.

In most of the photographs displayed in the Club Level Lounge, similar to the yearly highlight films, [a] football player wearing a helmet with the Flying B logo is readily identified as a football player for the Ravens. Bouchat IV, 619 F.3d at 309. In photographs in the Club Level Lounge, [t]he stadium field painted with the Flying B logo identifies it as the home field of the Ravens football team. Id. The logo on the ticket in the football collage identifies that ticket with the Ravens, as it did in 1996. The written commentary for the photographs is similar to verbal commentary in the yearly highlight films. Ultimately, the logo is still being used as a logo. Id.

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Important to the analysis is whether and to what extent the new work is transformative. Id., at 308. (quoting Campbell, 510 U.S. at 579). The District Court did not assess to what extent the uses were transformative but rather simply declared that the uses were substantially transformative without any analysis or rationale for this conclusion. (JA 194-95). There is, however, no physical transformation and there is no museum-like setting. While the displays might add to the historical record of Ravens play, the use of the logo in those films simply fulfilled its purpose of identifying the team. Id., at 309. Construing the record in a light most favorable to Plaintiff, there is a reasonable inference that the Ravens are commercially exploiting their own original infringement as an integral part of its game day revenue engine and entertainment package, included in the price of admission to the Club Level. While the Baltimore Ravens did not charge a specific fee for the patrons to view the displays in the Club Level Lounge, the displays were clearly part of the entertainment package for which the ticket holder paid admission to the game. Id., at 308; Herbert v. The Shanley Co., 242 U.S. at 594-95. The Ravens website even advertises that as one of its many amenities, the Club Level dcor features the historical display that is included as part of the package of those who pay the higher fare. (JA 151). The District Court was of the view that the sole material difference is that the Stadium Picture Displays are in the Stadium, so the general public must

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purchase a ticket to obtain entry (JA 193) but that the static picture displays are not any meaningful part of the incentive for a patron to buy a game ticket...[and not] a part of the game experience as are the video clips shown on the scoreboard during games. (JA 194). Defendants, however, submitted no evidence in the record as to what occurs on a game day, nor does the record support the District Courts conclusion that displays are not part of the game day experience. To the contrary, the record supports that the displays are there to enhance the game day experience of the well-to-do. The District Courts rationale that the static picture displays are not any meaningful part of the incentive for a patron to buy a game ticket, or part of the entertainment package, was rejected by the Supreme Court. See Herbert, 242 U.S. at 594-95 ( the performance of a copyrighted musical composition in a restaurant or hotel without charge for admission to hear it infringes upon the owners exclusive right to publicly perform the work for profit).13 This Court rejected the

See also Bleistein, 188 U.S. at 252 (Mr. Justice Holmes, speaking for the Court: That these pictures [reduced from prints for use in advertisements for a circus] had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs rights.); accord Campbell, 510 U.S. at 582-83 (quoting Bleistein); cf. Sony, 464 U.S. at 446-47 n.28 (The traditional method by which copyright owners capitalize upon the television medium -- commercially sponsored free public broadcast over the public airwaves -- is predicated upon the assumption that compensation for the value of displaying the works will be received in the form of advertising revenues.).

13

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District Courts same rationale when it found that brief segments of game footage shown at Ravens Stadium during the game were part of the entertainment package included in the price of the ticket. Bouchat IV, 619 F.3d at 308. Similarly, the displays themselves are marketing the team. The core commercial purpose...does not align with [ 107] preamble's protected purposes of comment, news reporting, research, and the like. Id., at 308. The District Court also found that the Ravens, while the originator of the infringement, were acting in good faith in believing that the uses in the Club Level Lounge were non-infringing. (JA 195). For the reasons stated in Part I.D. above, the District Court was incorrect. CONCLUSION The logo is still a logo. There is no transformative use present. What is present is the NFLs commercial exploitation of its own original infringement, something this Court found to be the antithesis of fair use. Bouchat IV, at 311, 314; see also Harper, 471 U.S. at 563 (Fair use distinguishes between a true scholar and a chiseler who infringes a work for personal profit.) (Citations omitted). Conversely, the NFL would not accept others to take videos of its televised games for a purported documentary that simply adds commentary to game footage without its express permission and license. Id., at 550 n.3. The NFL would not tolerate a neighborhood bar taking the same works as in issue

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here and displaying them without a license or paying a fee. Perhaps no more precise guide can be stated than...[the] clever paraphrase of the Golden Rule: Take not from others to such an extent and in such a manner that you would be resentful if they so took from you. Id. (citations omitted). Defendants have had the option to refrain from commercial exploitation of Bouchats logo design or, alternatively, seek a license from Bouchat. Instead of working within the free market system, Defendants have used fair use as a vehicle for the Court to hand them a perpetual license. This approach makes a mockery of the copyright law and invites public cynicism. The bottom line is that Defendants do not want the free market to operate and want the courts to grant them a perpetual license to use Bouchats copyrighted work without paying for it. If they were so interested in the publics need to know and the publics interest in their history, Defendants would have contributed it to the public domain instead of selling it or using it as a marketing tool, while hypocritically and vigorously asserting their own intellectual property rights against those who have not paid the going fare. Defendants purported use of Plaintiff's copyrighted work for historical purposes is the charade of a commercial predator. In equity, a thief should not have the benefit of his or her theft.

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WHEREFORE, for the aforementioned reasons, Appellant Frederick E. Bouchat respectfully requests this Court to reverse the summary judgment below and direct the District Court that the NFLs and the Baltimore Ravens commercial exploitation is not fair use. Respectfully submitted, /s/ Howard J. Schulman Howard J. Schulman (Fed. Bar #00129) SCHULMAN & KAUFMAN, LLC 100 N. Charles Street, Suite 600 Baltimore, Maryland 21201 (410) 576-0400 hjschulman@schulmankaufman.com /s/ Marie J. Ignozzi Marie J. Ignozzi (Fed. Bar #29762) SCHULMAN & KAUFMAN, LLC 100 N. Charles Street, Suite 600 Baltimore, Maryland 21201 (410) 576-0400 marie.ignozzi@schulmankaufman.com Attorneys for Appellant, Frederick E. Bouchat

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ADDENDUM 17 U.S.C. 106. Exclusive rights in copyrighted works Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

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17 U.S.C. 107. Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

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17 U.S.C. 113. Scope of exclusive rights in pictorial, graphic, and sculptural works (a) Subject to the provisions of subsections (b) and (c) of this section, the exclusive right to reproduce a copyrighted pictorial, graphic, or sculptural work in copies under section 106 includes the right to reproduce the work in or on any kind of article, whether useful or otherwise. (b) This title does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed than those afforded to such works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title. (c) In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports. (d)(1) In a case in which-(A) a work of visual art has been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), and (B) the author consented to the installation of the work in the building either before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal, then the rights conferred by paragraphs (2) and (3) of section 106A(a) shall not apply. (2) If the owner of a building wishes to remove a work of visual art which is a part of such building and which can be removed from the building without the Add. 3

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destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), the author's rights under paragraphs (2) and (3) of section 106A(a) shall apply unless-(A) the owner has made a diligent, good faith attempt without success to notify the author of the owner's intended action affecting the work of visual art, or (B) the owner did provide such notice in writing and the person so notified failed, within 90 days after receiving such notice, either to remove the work or to pay for its removal. For purposes of subparagraph (A), an owner shall be presumed to have made a diligent, good faith attempt to send notice if the owner sent such notice by registered mail to the author at the most recent address of the author that was recorded with the Register of Copyrights pursuant to paragraph (3). If the work is removed at the expense of the author, title to that copy of the work shall be deemed to be in the author. (3) The Register of Copyrights shall establish a system of records whereby any author of a work of visual art that has been incorporated in or made part of a building, may record his or her identity and address with the Copyright Office. The Register shall also establish procedures under which any such author may update the information so recorded, and procedures under which owners of buildings may record with the Copyright Office evidence of their efforts to comply with this subsection.

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17 U.S.C. 501. Infringement of copyright (a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a). As used in this subsection, the term anyone includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity. (b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright. (c) For any secondary transmission by a cable system that embodies a performance or a display of a work which is actionable as an act of infringement under subsection (c) of section 111, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that television station. (d) For any secondary transmission by a cable system that is actionable as an act of infringement pursuant to section 111(c)(3), the following shall also have standing to sue: (i) the primary transmitter whose transmission has been altered by the cable system; and (ii) any broadcast station within whose local service area the secondary transmission occurs. (e) With respect to any secondary transmission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is Add. 5

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actionable as an act of infringement under section 119(a)(5), a network station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that station. (f)(1) With respect to any secondary transmission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 122, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local market of that station. (2) A television broadcast station may file a civil action against any satellite carrier that has refused to carry television broadcast signals, as required under section 122(a)(2), to enforce that television broadcast station's rights under section 338(a) of the Communications Act of 1934.

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CERTIFICATE OF COMPLIANCE WITH RULE 32(a) Certificate of Compliance with Type-Volume Limitation, Typeface Requirements, and Type Style Requirements
1.

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because: this brief contains 13,098 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2.

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: this brief has been prepared in a proportional spaced typeface using Microsoft Word in 14 point Times New Roman.

/s/ Howard J. Schulman Howard J. Schulman Counsel for Appellant

Dated: March 5, 2013

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CERTIFICATE OF FILING AND SERVICE I hereby certify that on March 5, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF System, which will send notice of such filing to the following registered CM/ECF users: Robert Lloyd Raskopf Sanford I. Weisburst Todd S. Anten Rachel E. Epstein QUINN, EMANUEL, URQUHART, OLIVER & HEDGES, LLP 51 Madison Avenue 22nd Floor New York, NY 10010 (212) 849-7000 Counsel for Appellees Mark D. Gately HOGAN LOVELLS US LLP Harbor East Suite 2000 100 International Drive Baltimore, MD 21202 (410) 659-2700

Counsel for Appellee Baltimore Ravens LP

The necessary filing and service were performed in accordance with the instructions given to me by counsel in this case. /s/ Melissa A. Dockery Melissa A. Dockery GIBSON MOORE APPELLATE SERVICES, LLC 421 East Franklin Street Suite 230 Richmond, VA 23219