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An artist produced adequate evidence that the owner of the Baltimore Ravens football team had an opportunity to see his drawing of a proposed team logo to satisfy the access requirement for maintaining a copyright infringement action, the 4th U.S. Circuit Court of Appeals ruled Oct. 3 ( Frederick E. Bouchat v. Baltimore Ravens Inc., et al., No. 99-1617, 4th Cir.). A split panel of the court affirmed a ruling by U.S. District Judge Marvin J. Garbis of the District of Maryland denying a motion by the Ravens and National Football League (NFL) Properties Inc. for judgment notwithstanding a jury verdict in favor of artist Frederick E. Bouchat. After hearing that Baltimore would be home to a new NFL team, Bouchat, an amateur artist, created a logo and affixed it to a miniature football helmet, which he gave to Eugene Conti, a state official whose office was in the State of Maryland office building where Bouchat worked as a security guard. Conti kept the helmet on display in his office. MEETING HELD In early 1996, Conti arranged a meeting between Bouchat and John Moag, chairman of the Maryland Stadium Authority, which had brought the team to Baltimore. Bouchat met Moag at his law office on March 28, 1996; the team’s owner, David Modell, occupied the same office suite as temporary space at that time. At the meeting, photos were taken and Moag told Bouchat that the team would be named the Ravens. Moag invited Bouchat to send him copies of his drawings; Bouchat did so by fax on April 1 or 2. On April 2, 1996, Modell met with the NFL Properties design director to discuss development of a Ravens logo. In June 1996, the Ravens unveiled their new logo – a raven holding a shield. Upon seeing the logo, Bouchat contacted a lawyer and registered the copyright in his drawing in August 1996. In May 1997, he sued, alleging infringement. A jury returned a verdict for Bouchat in November 1998. The Ravens moved for judgment as a matter of law or a new trial; the court denied the motion, then certified four questions for interlocutory appeal to the 4th Circuit: “(1) Was the plaintiff’s proof of a reasonable possibility of access legally insufficient? (2) If so, will the 4th Circuit adopt the ‘strikingly similar’ doctrine inferring access, as expressed in Gaste v. Kaiserman, 863 F.2d 1061, 1968 (2d Cir.)? (3) Should the copyright infringement claim be dismissed because the plaintiff failed to note the derivative nature of the shield drawing on the application for copyright, where defendants have not proven fraud or a purposeful failure to advise the copyright office of facts that might have caused rejection of the application? (4) Did the court improperly coerce the jury to reach its verdict?” ACCESS To prove access, the 4th Circuit said, Bouchat was required to show that the NFL designers had an opportunity to view his work. Further, the panel said, the jury was entitled to infer that the NFL designers had access if a third-party intermediary with a close relationship to the designers had access. Bouchat provided such proof, the panel said. “Bouchat offered evidence that his shield drawing was transmitted first to Moag, who shared an office with Modell (who had a close relationship with the alleged infringers on the design project),” the panel said. “Bouchat testified that Moag offered to forward his (Bouchat’s) drawings to the Ravens and that Bouchat sent the fax of the drawings to MSA, addressed to Moag. The jury was entitled to credit that testimony.” Moreover, the panel said, the evidence adduced at trial revealed that the regular practice at the MSA was to forward faxes for Moag to his law office. And, the panel said, the defendants admitted that Modell and other Ravens staff shared office space with Moag and that Modell’s office was “within earshot” of Moag’s. “By proving that the drawings were transmitted to Moag and that Modell shared the same office space with Moag, Bouchat proved that Modell had ‘access’ to Bouchat’s drawings,” the panel said. “The chain of transmittals is far more than hypothetical — it is based on the testimony of Bouchat and the evidence regarding standard office routines at the MSA.” STRIKING SIMILARITY Turning to the second question, while noting that the issue of access has been resolved, the panel concluded that “striking similarity is one way to demonstrate access” and can raise an inference of copying, but that the inference must be reasonable in light of all the evidence. “What is important is that the access prong remains intact, but the level of similarity between the contested works can be used as evidence of access,” the panel said. “Any finding of access must be reasonable in light of all the facts of a particular case.” COPYRIGHTABILITY The panel rejected the defense argument on copyrightability, finding Bouchat’s drawing protectable under the Copyright Act. “Neither the fact that Bouchat incorporated public domain elements in this drawing (the letter ‘B,’ a cross, a shield) nor the fact that he did not expressly indicate on his application that such elements rendered the authorship of the drawing derivative in nature, invalidate the protection to which his drawing is otherwise entitled under his valid copyright registration,” the court said. “Accidental but harmless mistakes in a copyright application do not subsequently preclude an infringement action against an alleged copier.” COERCION Finally, the panel found no grounds for concluding that the court coerced the jury to reach a verdict by providing supplemental instructions and asking about the progress of deliberations. “The district court specifically told the jurors that it was not suggesting anyone surrender their honest convictions about the case,” the panel said. “The district court characterized its instructions as ‘fair and balanced,’ and such a characterization is accurate. The fact that the jurors were actively encouraged to persist in their effort to reach consensus does not mean that they were coerced.” The court’s opinion was written by U.S. Judge James H. Michael Jr. of the Western District of Virginia, sitting by designation, and joined by Circuit Judge H. Emory Widener. DISSENT In a dissent, Circuit Judge Robert B. King said that the jury’s verdict “is entirely without legal or factual support.” Specifically, the judge said, Bouchat produced no direct evidence of copying and did not produce sufficient evidence to show that Moag received the shield drawing or that Modell had access to it. The Ravens and the NFL are represented by Robert Lloyd Raskopf, John P. Reiner and Marc E. Ackerman of White & Case in New York and George Beall of Hogan & Hartson in Baltimore. Bouchat is represented by Howard J. Schulman of Schulman & Kaufman in Baltimore and Robert J. Kasunic of Germantown, Md. � Copyright 2000 Mealey Publications, Inc.

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