Handicapping the Victim of Copyright Infringement
...or granting to third parties the right to use the logos and trade/service marks of the various NFL teams in connection with a variety of products and services. NFLP was also responsible in their capacity for developing the Ravens’ new logo (the “Flying B” logo), which was at the center of the controversy between the parties. The Ravens adopted the “Flying B” logo as their primary logo, not realizing that the NFLP infringed anyone’s work in creating the logo. The Ravens assumed that the logo was an original work created and owned by the NFLP. As a result of their assumption, the Ravens used the logo in every aspect of their activities including their “uniforms, stationary, tickets, banners, on-field insignia, and merchandise.” Bouchat, in response to the use of his original work, filed a suit for copyright infringement of his “shield drawing” and other drawings, in the U.S. District Court for the District of Maryland against both the Ravens, and the NFLP. He sought ten million dollars in damages, contending that “some portion of all of the defendant’s revenues were attributable to the infringing use of [his] artwork.” B. Procedural History The District Court bifurcated the trial, first determining whether the Baltimore Ravens and/or the NFLP were liable for copyright infringement of Bouchat’s drawings. After a jury found that Bouchat proved the infringement of his “shield drawing”, and the court certified the liability verdict of the jury for interlocutory appeal purposes, the case proceeded to the United States Court of Appeals. The Court of Appeals affirmed the jury’s finding of liability, and refused appellant’s request to rehear the appeal en banc. After the United States Supreme Court denied certiorari, and the issue of liability was now settled, the case was sent back to the United States District Court to determine the issue of damages. After a jury found that the defendants proved by a preponderance of the evidence that the non-excluded merchandise revenues (defined by the court as including, for example “revenues from the sale of game tickets, stadium parking, food, drinks (with the exception of those sold in special logo bearing cups), broadcast rights, and sponsorships” ) “were attributable entirely to factors other than the defendants’ infringement of Bouchat’s copyright”, Bouchat appealed to the U.S. Court of Appeals, contending that the district court awarded partial summary judgment concerning certain portions of defendant’s revenues in error. C. Applicable Law and the Court’s Rationale A successful copyright plaintiff can recover from an infringing defendant, all profits of the infringer that are attributable to the infringement. In affirming the district court’s decision of awarding partial summary judgment to the defendants, the Court of Appeals noted two categories of cases in other jurisdictions where partial summary judgment was awarded for the defendant with respect to part or all of the infringer’s revenues. The court stated that the two categories are: (1) those in which there existed no conceivable connection between the infringement and a given revenue stream; and (2) those in which, despite the existence of a conceivable link, the plaintiff failed to offer anything more than mere speculation as to the existence of a causal connection between the infringement and the claimed revenues. The U.S. Court of Appeals adopted this test in deciding Bouchat’s case. In analyzing Bouchat’s case in particular, the court looked at two major revenue streams for the Baltimore Ravens, the “Non-Merchandise Revenues”, and the “Excluded Merchandise Revenues” and determined that as to two sub-categories of “Excluded Merchandise Revenues”, there was no conceivable connection between the infringement, and the revenue generated from these two particular revenue streams. As to the remaining sub-categories of the “Excluded Merchandise Revenues” and as to the “Non-Merchandise Revenues”, the court affirmed the award of summary judgment stating that: Because Bouchat offered only speculative evidence of a causal link between the infringement and the level of the revenues that the Defendants earned from these sources, and because the Defendants’ request for summary judgment was supported by unrebutted evidence demonstrating that these revenues were not, in fact, in any way attributable to the infringement, there was no issue of material fact for consideration by the jury. Under copyright law, 17 U.S.C. § 504(b) is the applicable section that would allow a copyright owner to recover the profits of an infringer attributable to the infringement. However, as the court recognized for the defendants in this case, if the infringer can show that part or all of those revenues are expenses that can be deducted because they are attributed to factors other than the use of the copyrighted work, then the infringer is entitled to summary judgment pursuant to rule 56 of the Federal Rules of Civil Procedure. Here, the court felt that the defendants provided evidence that Bouchat was unable to effectively counter, showing that the revenue streams in question were “driven by consumer interest in NFL football, and likewise are in no...