By Mike Masnick
April Fool’s Day has already passed, so it appears this is legit. Yes, the MPAA has jumped into a court case to argue in favor of fair use. A few years ago, we wrote about the fact that there are actually lawyers whose main job is to watch movies to make sure every single thing that’s in there that might be covered by trademark or copyright is licensed. This leads to some crazy situations, such as the re-release of Titanic requiring a new license to show some of the paintings hanging in the film.
But what happens when a work in a film is infringing? Well, that’s the case at hand here.
Apparently, the Baltimore Ravens football team used a logo designed by a fan for a few years, violating his copyright. The court ruled against the team, but also didn’t give the artist any money, since it noted that any profits from the team had nothing to do with the logo.
The artist, Frederick Bouchat, has continued to sue, trying to find creative ways to get some cash. Here’s THREsq summarizing the recent lawsuits and the result:
Then, in 2008, Bouchat sued the NFL and the Baltimore Ravens again. This time, he objected to use of the old infringing logo in highlight films, on the stadium’s display of old players and memorabilia. Then, a few years after that, he sued yet another time over use of the logo in documentary videos, in pictures on the stadium wall and in the Madden NFL football game, which allows users to compete with throwback uniforms.
Last November, a federal judge declared most of the uses — including in NFL television series and documentaries such as one that featured the player draft — to be covered as “fair use.” The judge factored in the purpose and character of the use, the nature of the copyrighted work, the amount used in relation to the copyrighted work as a whole and the effect of the use upon the potential market for the copyrighted work. The only use that fell outside of fair use was the way in which Bouchat’s logo was incorporated into a video game.
Bouchat appealed. And suddenly, the MPAA woke up and realized that fair use matters to the MPAA too. If the ruling goes in favor of Bouchat, suddenly many, many movies may be on the hook for things that happened to show up in movies that weren’t properly licensed. And then, the very same MPAA, who has worked hard to limit fair use around the globe, wouldn’t be very happy. So it actually had some Stanford fair use lawyers (who aren’t often on the same page as the MPAA) help it draft an amicus brief explaining why fair use is important.
Bouchat asks this court to adopt a rule that would depart from well established precedent and would have the potential to interfere with important speech and expression rights. Bouchat seeks nothing less than a de facto right to control the depiction of facts—in this case, events that actually happened on the football field—simply because those facts include the fact that the players wore uniforms that include Bouchat’s copyrighted logo. It is antithetical to the purposes of copyright to use it to force an inaccurate depiction of actual events.
The potential impact of Bouchat’s claims is not limited to the Baltimore Ravens or the NFL. Many historical subjects cannot be discussed effectively without the use of copyrighted material. It would be difficult, for example, to make an effective biography of an actor without including audiovisual clips depicting his work, in order, for example, to illustrate a point about his career and impact, Hofheinz v. A & E Television Networks, 146 F.Supp.2d 442, 446–47 (S.D.N.Y. 2001) (finding transformative film footage used for the purpose of enabling the viewer to understand the actor Peter Graves’ modest beginnings in the film business), or to create a comprehensive study of surrealist art without including works by Salvador Dali, to accompany the author’s commentary, see Warren Publ’g Co. v. Spurlock, 645 F.Supp.2d 402, 419 (E.D. Pa. 2009). It would be nearly impossible to document any sliver of life in a major American city without capturing vast numbers of logos, signs, billboards, and other copyrighted works along the way. Cf. ESS Entm’t 2000 v. Rock Star Videos, 547 F. 3d 1095, 1100 (9th Cir. 2008) (“Possibly the only way, and certainly a reasonable way, to” recreate “look and feel” of city was “to recreate a critical mass of the businesses and buildings that constitute it,” even if protected by trademark). It would be similarly impossible to make a documentary about the healthfulness of McDonald’s food (Super Size Me) or Wal-Mart’s business practices (Wal-Mart: The High Cost of Low Price) without depicting each company’s logo.
Bouchat asks this Court to set forth a rule that would require permission for uses like these. That rule would have a profoundly negative impact on free speech and expression because rights-holders would demand some control over the way individuals or organizations are portrayed, or simply choose to prohibit unflattering or disfavored depictions.
Funny, isn’t it, that this is the very same MPAA who insists that nothing about copyright law can be construed to be a limit on free speech. Well, until it’s the free speech of the MPAA’s studio members, I guess.
Not surprisingly, I actually agree strongly with the MPAA (who thought they’d ever see that come out of me?) that this should be fair use. I just find it funny to see the MPAA making such an argument.