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Ravens Logo IP Case Splits Down the Middle
In February the Baltimore Ravens were able to hold off the San Francisco 49ers to pull out a nail-biting victory in Super Bowl XLVIIthe team's second championship in its 17-season history. But after more than a decade and a half of litigation, the team still hasn't finished off its peskiest rival, Baltimore native and dedicated doodler Fred Bouchat.
Bouchat started sketching ideas for the team's logo soon after the owner of the Cleveland Browns announced in the fall of 1995 that his franchise would be moving to Baltimore. Bouchat, who worked as a security guard in a Baltimore office building at the time, showed his sketches to anyone who would look at them, and faxed the drawings to an official at the Maryland Stadium Authority for the team's consideration.
Bouchat never heard from the team. But when the Ravens' new logo first appeared in the local newspaper, he immediately noticed that the "Flying B" design looked almost exactly like one of the designs that he had eagerly shown around. Bouchat hired Baltimore lawyer Howard Schulman, who first copyrighted his client's designs, and then filed an infringement suit against the Ravens and the National Football League in 1997.
U.S. District Judge Marvin Garbis, who still presides over the litigation to this day, bifurcated Bouchat's suit into separate trials on infringement and damages. In 1998 a jury found the NFL and Ravens guilty of infringement. According to the jurors, Bouchat's designs had somehow entered into the flow of documents used by the league's in-house artists. But in 2002 a different jury decided that despite the infringement, the Ravens and the NFL didn't owe Bouchat any damages, because the profits from merchandise and souvenirs with the Flying B logo were due to the team's marketing efforts rather than Bouchat's artistic input.
The conflicting jury verdicts have resulted in the litigation equivalent of trench warfare. Armed with the infringement finding, Bouchat and Schulman have repeatedly sued the league, the team, and their business partners practically anytime the old Flying B logo pops upbe it in a stadium photo display, a highlight reel, or a video game. Meanwhile, the Ravens and the NFL, backed by the $0 damages finding, have yet to pay Bouchat a penny.
As the fight has dragged on, the potential recovery has plummeted and the legal bills have soared. Schulman says that his client's case "is being funded by my lack of business judgment." Lawyers for the NFL declined to say how much its defense has cost, but the league has consistently hired talent from top-dollar firms, including Hogan & Hartson (now Hogan Lovells), White & Case, and Quinn Emanuel Urquhart & Sullivan.
In an interview this winter, Schulman argued that an injunction barring the NFL and its partners from using the Flying B logo would be the best solution at this point. "Our message is very simple: Stop using it," Schulman says. "Let the market forces operate. If they want to pay whatever Mr. Bouchat is willing to take [to use it], then fine."
NFL defense counsel Robert Raskopf has countered that it's Bouchat who's been dragging the case out, by suing anyone who's ever used the Ravens' first logo in any context. "If there's a discernible Flying Bno matter how incidental, inconsequential, historical, noncommercial, educational, unexploited, important, factualwe will see it in a lawsuit," Raskopf said at a hearing before Garbis this past October. Raskopf has argued for the NFL in more hearings in the Bouchat litigation than anyone else, first as a partner at White & Case and, since 2006, as a partner at Quinn Emanuel. "The NFL has moved on," Raskopf added at the hearing.
Few IP practitioners will ever face a copyright case as peculiar as this one, given its twists and turns and the bizarre set of underlying facts. But Mark McKenna, a professor at the University of Notre Dame Law School who has written extensively about sports logo licensing, says that Bouchat's suit offers a lesson about the nature of litigation. "People sometimes act irrationally because they get stuck on what the outcome should be," McKenna says. Some contests, it seems, grow too heated to end with the rivals shaking hands.
Maryland's biggest city was left without an NFL franchise after the once-beloved Baltimore Colts left for Indianapolis in 1984. Fans felt jilted by the Colts, who hauled away their belongings in Mayflower moving vans early one snowy March morning.
But in 1995 it was Ohio's biggest city that was left bereft when Art Modell, the owner of the Cleveland Browns, announced plans to move his team to Baltimore with a new and as-yet-undetermined name. Fans like Bouchat were ready to embrace the new and as yet unnamed team. (Schulman has referred to Bouchat as "a Baltimore football patriot" on multiple occasions in court and in the press, but declined to make him available for comment for this article.) Bouchat, who never finished high school, began sketching possible logos. His favorite name was the Ravens, because of his love of the "Ravens of Doom" comic book.
In November 1995 Bouchat displayed his designs at the guard station that he manned in a Maryland state office building. He affixed one of his designs to a model football helmet and gave it to Eugene Conti Jr., the secretary of Maryland's Department of Labor, Licensing, and Regulation, who worked in the building. In appreciation, Conti arranged a surprise meeting in March 1996 between Bouchat and John Moag Jr. Conti credited Moaga partner at Patton Boggs and chairman of the Maryland Stadium Authoritywith luring the new team to Baltimore.
Bouchat didn't know about the meeting in advance, so he didn't have his drawings with him. But Conti gave Bouchat the decorated helmet to present to Moag. The men posed for a picture that appeared in an employee newsletter for Conti's department with the caption, "Mr. Moag accepted the helmet and assured Fred that it would be passed onto [team owner Art] Modell."
Bouchat later claimed that during this meeting, he told Moag about his Ravens drawings and was encouraged to submit them to the team. In early April, Bouchat faxed his Ravens drawings to Moag with a note asking him to forward them to David Modell, Art's son and the team president. Bouchat wrote, "If he would like this design if he does use it I would like a letter of recognition and if the team wants to I would like a adiograph [sic] helmet." Bouchat never heard back.
When the Ravens unveiled their logo in June 1996, Bouchat claims he immediately recognized the logo on the team's helmetthe letter B on a winged shield (a design that later came to be referred to as the Flying B in court proceedings). The logo, which had been designed by the NFL's in-house artists, had an undeniable resemblance to Bouchat's drawing of a raven holding a shield in its beak.
At the urging of a friend, Bouchat contacted Baltimore lawyer Howard Schulman, himself a former football player and coach. Schulman had been in the news for some of his cases, including a number of successful challenges brought on behalf of adult bookstore owners against Maryland municipal zoning ordinances. Schulman had also represented local government whistle-blowers, and defended a Baltimore landlord facing criminal charges related to lead paint in his apartments.
Schulman helped Bouchat register the drawing with the U.S. Copyright Office in August 1996. In May 1997less than five months after the Ravens finished their first season in BaltimoreSchulman filed suit on Bouchat's behalf and asked for $10 million. At the time of the filing, Moag told the Baltimore Sun that he remembered meeting Bouchat, but couldn't remember getting any sketches from him. One Ravens executive told the Sun, "If this guy drew the same or nearly same thing, it would be one of the great coincidences of the world."
The NFL and the Ravens tried to ward off a trial by arguing that there was no evidence that they had had access to Bouchat's designs. Bouchat, for instance, hadn't held on to fax receipts. But Judge Garbis found that there were enough questions of fact for a trial to proceed. He also bifurcated the case to try the infringement question before the damages phase, a decision that would put each issue before separate juries.
The infringement claims went to trial in October 1998, with the Ravens four games into their third season and still wearing the allegedly infringing logo. Addressing the jury, Schulman pointed to anatomical errors that appeared in both Bouchat's drawing and early drafts of the NFL's workthe same, incorrect number of raven tail feathers, and claws that were more badger-like than raven-like. There was no way for Bouchat to have access to those early drafts, Schulman argued, so the NFL design must be a copy. Schulman presented 19 witnessesincluding an assistant attorney general and a ministerwho testified that they saw Bouchat's drawings in late 1995, six months prior to the unveiling of the Ravens logo. Two of those witnesses testified that Bouchat gave them a copy of his shield drawing for Christmas that year.
The trial team for the NFL and the Ravens, headed up by Hogan & Hartson's George Beall and White & Case's John Reiner, had to admit that Bouchat had met with Moag, whose law office was within earshot of temporary space occupied by Ravens president David Modell. But the defense maintained that Moag never received Bouchat's fax and that the NFL had a long-standing policy of not accepting outside submissions. The league's lawyers displayed images of comic book characters that Bouchat had traced and then signed, in hopes of knocking his credibility as an artist and establishing a propensity to copy things and call them his own. The defense also presented testimony from 11 employees of NFL Properties (the league's marketing arm), who said that they designed the logo themselves and never saw Bouchat's drawing.
On November 3, 1998, after eight days of deliberations and twice telling the judge that they were at an impasse, the jurors finally found for Bouchat. The testimony of Bouchat's witnessesincluding a few who remembered the logo because they didn't particularly like itcarried more weight with the jury than the testimony of logo designers on the NFL payroll. But, in a nod to how close the case was, the jurors did not find willful infringement. Rather, they concluded that Bouchat's drawing got into the flow of documents that NFL designers used to create the logo.
Bouchat told the Sun after the verdict, "All I wanted was a little recognition… It was never about the money. If they came to me now, I'd probably still take the autographed helmet." Schulman added, "He's certainly got his letter of recognition nowin the form of the verdict in this case." Shortly after the verdict, the Ravens changed their logo to feature a raven head in profile, with a B on the side.
After Judge Garbis denied the NFL's request to throw out the verdict, a panel of the U.S. Court of Appeals for the Fourth Circuit heard an interlocutory appeal in March 2000. Schulman argued for Bouchat while Raskopf, then at White & Case, argued for the NFL. In October 2000 the panel ruled 2 to 1 to uphold the infringement verdict, and in May 2001 the U.S. Supreme Court declined to review the case.
Bouchat and the NFL squared off for the damages trial in July 2002, again before Judge Garbis. Schulman continued to press the attack for Bouchat. But the NFL switched lead trial counsel in favor of Raskopf, who has also handled cases involving the Dallas Cowboys, Green Bay Packers, and Cleveland Browns. Most notably, he's led the NFL's defense of the Washington Redskins trademarks from legal challenges claiming that the designs disparage Native Americans.
Due to a disagreement on whether damages should be decided by a judge or a jury, Garbis took the unusual step of conducting a bench trial at the same time that he was overseeing the jury proceedings. Raskopf told the jury that Bouchat was due nothing from the money that the NFL earned from products with the Flying B logo$2.2 million from merchandise and $416,000 from souvenir cups. The team would have sold the same amount of product, and made the same profit, regardless of the logo. Raskopf did mention a potential damages amount1 percent of merchandise and souvenir profits, or just under $27,000but even that figure would be more than double what most artists got for designing an NFL logo, he added.
After less than eight hours of deliberations, the jury awarded Bouchat $0 in damages. For his part, Judge Garbis revealed that he would have given Bouchat 1 percent of the team's merchandise profit and 0.2 percent of the souvenir cup profits, or a little less than $25,000 total. For once in the litigation, both sides agreed on somethingto go with the jury's damages figure. The NFL liked the verdict since it awarded zero damages. Schulman opted to accept the $0 jury award, in part because he thought it wouldn't stand up on appeal. But the Fourth Circuit affirmed the damages number in a 2-to-1 decision.The split outcomeBouchat won on infringement, but the NFL won on damagesappears to be unusual in IP cases where there's already been a finding of infringement. Sara Jeruss, director of legal analytics at Lex Machina, says that $0 damages awards are "very rare" in patent cases. But Lex Machina, a data analysis firm spun out of a Stanford Law School project, does not currently have specific damages data about copyright and trademark cases.
Even before Bouchat and Schulman failed to win any damages from the NFL, they decided to go after other targets. From 1999 to 2003, they sued several licensees who sold merchandise with the Flying B. The defendants included Champion Products Incorporated, which made athletic wear with the logo, and Electronic Arts Inc., which made video games such as Madden NFL that included Ravens players wearing the team's first uniforms. Garbis dismissed the suits in 2003, ruling that the findings in the infringement and damages trials were binding in the cases against the licensees. A Fourth Circuit panel upheld that ruling in a 3-to-0 decision in 2007.
The following year, Bouchat sued the Ravens, the league, and NFL Films (the league's filmmaking arm) for selling highlight films for the three years that the team wore the Flying B logo, and for playing highlights on the scoreboard during Baltimore's home games that showed players wearing the Flying B. Notably, for the first time, Bouchat asked for a "final, permanent injunction" to stop future infringement by the league.
Garbis dismissed this suit on summary judgment in 2008, finding that the fair use provisions of the copyright law protected the defendants' uses of the Flying B logo. Inevitably, the judge's decision was appealed to the Fourth Circuit, wherefor the first timeone of the lower court outcomes wasn't upheld. In 2009 a circuit panel ruled 2 to 1 to reverse Garbis's fair use decision regarding the film footage, and remanded the case back to him to determine whether an injunction was appropriate. In 2011 Judge Garbis ruled that an injunction wasn't appropriate, but did so on the condition that the Ravens pay Bouchat reasonable compensation for the use of the logo going forward.
Unsurprisingly, the sides couldn't agree what that might be, so they ended up in front of Garbis again in October 2012 for a bench trial. The judge took the bench that morning wearing a tie with the Flying B logo. "Let's say you guys all go out to lunchjust on one side you've taken care of what's involved in this case," Garbis told the lawyers. In other words, what had started as a dispute that potentially involved tens of millions of dollars was now dipping into three-figure territory.
Raskopf, now a partner at Quinn Emanuel, again appeared for the NFL, and maintained that his client was "not using the Bouchat logo . . . the Flying B logo, in any significant commercial way." Plus, Raskopf added, "we don't have anything in this record that shows that Mr. Bouchat's work has any value whatsoever." Addressing the point of the hearingthe "reasonable compensation" that Bouchat was due for the use of the Flying B logo in the Ravens' highlight filmsRaskopf argued that anything more than a onetime award of nominal damages would be unjustified.
Schulman, meanwhile, reminded the court that the NFL and the team had been found to infringe Bouchat's copyright. "These people don't come to this court with clean hands," he said. "They're serial IP infringers."
By the end of the hearing, Garbis was exasperated. He practically begged the parties to find an out-of-court solution, especially given the inevitable retirement of legendary Ravens linebacker Ray Lewis, and the Pro Football Hall of Fame candidacy of offensive lineman Jonathan Ogden. Both men joined the team in its first year in Baltimore, meaning that footage and photos of them wearing the Flying B logo would likely resurfaceand land in Schulman's litigation sights.
But the parties were unmoved by Garbis's plea to settle. In January he issued an injunction in the case on remand from the Fourth Circuit. He barred the sale of highlight films for the Ravens' first two seasons unless the NFL paid Bouchat a onetime royalty of $721. The judge also issued an injunction stating that old footage of the Ravens wearing the Flying B logo against in-game opponents couldn't be shown on the scoreboard during Baltimore's home games, unless Bouchat was paid $100 per clip. Schulman filed an appeal in that case in February, and the NFL filed a cross-appeal.
Yet the suits still haven't stopped. Last fall Schulman filed a new batch of claims alleging more instances of infringement in new products. Bouchat accuses NFL Enterprises, the Ravens, and Electronic Arts of infringement because they had used the Flying B logo in new highlight videos, in photo displays at the team's stadium, and in the 2011 installment of the Madden NFL video game, respectively. In November, Garbis found fair use in the NFL Films and photo display cases, but no fair use in the Electronic Arts case. Schulman filed a notice of appeal in the first two cases, while the video game matter was set for an April settlement conference at press time.
For an outside observer, it's easy to look back on everything that's transpired since 1996 and find seemingly small decisions that have had huge consequences. In retrospect, Bouchat should have registered his copyright prior to the unveiling of the official Ravens logo. If he'd done so, he would have been eligible for statutory damages of up to $30,000 per infringement. But it's unreasonable to expect an amateur artist like Bouchat to copyright all of his doodles, given the unlikelihood of someone actually using them. However, Bouchat and Schulman opened the door for the league to portray them as profit-seekers by allowing the Ravens to play under the disputed logo for a season before filing suit.
Schulman counters that he had to conduct a thorough investigation of Bouchat's claims about the logo's creation before dealing with the NFL. Schulman adds that the league had a particularly bad reputation locally after it let the Colts leave for Indianapolis. "People who had dealt with [the league] told me, 'Count your fingers after you shake hands with them,' " he says.
Hogan Lovells partner Mark Gatelywho has represented the Ravens in the litigation since 2008says he has trouble believing that it took Schulman a year to figure out whether his client had a case or not. "You don't have to file suit. You can send a letter," Gately says. "He never put anyone on notice, which is a little unusual."
Still, one could just as easily ask why the Ravens and the NFL haven't written Bouchat a check, given him his letter of recognition, and found a way to be done with the litigation. But according to Notre Dame professor McKenna, the pro leagues get floods of unsolicited submissions every time they expand to a new market. Some submissions are bound to share elements with the logo a team ultimately picks. McKenna says that if the NFL settles such claimsespecially in a case such as Bouchat's where a judge and jury found that the league had no intention of the drawing ending up in its designers' handsit could give rise to similar claims in the future.
In retrospect, the $0 award in the damages trialalthough seemingly the ideal outcome for the NFLhas led to another decade of Schulman's litigation crusade to get credit and compensation for Bouchat. Would a five-figure damages award, like the one proposed by Judge Garbis, have enabled the two sides to find a reasonable solution?
Gately says that's a good question, but one that's impossible to answer. If there were a time machine to take everyone involved back to 1999, knowing what they now knowthe diminishing value of the case for Bouchat and Schulman, and the mounting defense costs for the NFLGately says the parties around that hypothetical table might reach a settlement. But that's not where things sit now. "There comes a point that neither side anticipated, where you've dug your hole so deep you can't get out," Gately adds. "It's almost mythical at this point. It's almost like: It's here, and it's going to be here forever."