PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`
`FREDERICK E. BOUCHAT,
`Plaintiff-Appellant,
`v.
`BALTIMORE RAVENS LIMITED
`PARTNERSHIP; NATIONAL FOOTBALL
`LEAGUE; NFL PRODUCTIONS LLC,
`d/b/a NFL Films, Incorporated, a
`subsidiary of NFL Ventures L.P.,
`1 NFL Plaza, Mt. Laurel, New
`Jersey 08054,
`Defendants-Appellees,
`and
`NFL FILMS, INCORPORATED; THE
`BALTIMORE SUN COMPANY,
`Defendants.
`
`No. 08-2381
`
`Appeal from the United States District Court
`for the District of Maryland, at Baltimore.
`Marvin J. Garbis, Senior District Judge.
`(1:08-cv-00397-MJG)
`
`Argued: December 4, 2009
`
`Decided: September 2, 2010
`
`Before NIEMEYER, MICHAEL, and GREGORY,
`Circuit Judges.
`
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`2
`
`BOUCHAT v. BALTIMORE RAVENS
`
`Reversed and remanded in part; affirmed in part by published
`opinion. Judge Michael wrote the opinion, in which Judge
`Gregory joined. Judge Niemeyer wrote a dissenting opinion.
`
`COUNSEL
`
`ARGUED: Howard J. Schulman, SCHULMAN & KAUF-
`MAN, LLC, Baltimore, Maryland, for Appellant. Robert
`Lloyd Raskopf, QUINN, EMANUEL, URQUHART, OLI-
`VER & HEDGES, LLP, New York, New York, for Appel-
`lees. ON BRIEF: Daniel P. Doty, SCHULMAN &
`KAUFMAN, LLC, Baltimore, Maryland, for Appellant. Mark
`D. Gately, HOGAN & HARTSON, LLP, Baltimore, Mary-
`land; Sanford
`I. Weisburst, QUINN, EMANUEL,
`URQUHART, OLIVER & HEDGES, LLP, New York, New
`York, for Appellees.
`
`OPINION
`
`MICHAEL, Circuit Judge:
`
`For the fourth time we consider on appeal an aspect of
`Frederick E. Bouchat’s copyright infringement cause against
`the Baltimore Ravens football organization and National
`Football League entities for their unauthorized copying of a
`Ravens team logo, drawn by Bouchat, that was used for three
`seasons as the team’s official symbol. This appeal arises from
`an action Bouchat filed to enjoin defendants’ depictions of the
`copyrighted logo in season highlight films and in the Ravens
`corporate lobby. The district court found that defendants’
`depictions of the logo were a fair use and entered judgment
`against Bouchat. We reverse in part because defendants can-
`not establish a fair use defense for the depictions of the logo
`in
`the highlight films, where
`the
`logo use
`is non-
`transformative and commercial. We reject defendants’ con-
`
`

`
`BOUCHAT v. BALTIMORE RAVENS
`
`3
`
`tention that Bouchat’s request for injunctive relief against
`these acts of infringement is precluded, and the district court
`on remand will therefore consider whether an injunction is
`appropriate. We affirm the district court’s finding of fair use
`as to the depictions of the logo in the Ravens corporate lobby,
`where team history is portrayed, free of charge.
`
`I.
`
`Bouchat owns the copyright in a drawing he created in
`1995 and proposed for use as the Ravens team logo (the
`Shield logo). The Ravens used a strikingly similar logo design
`during the team’s first three seasons, 1996, 1997, and 1998
`(the Flying B logo). The Flying B logo was displayed on the
`side of the Ravens football helmet, painted on the Ravens
`field, and printed on flags, hats, tickets, and other assorted
`objects. Our first decision on this subject affirmed the jury’s
`liability verdict, which found that the Ravens and the National
`Football League had infringed Bouchat’s copyright in the
`Shield logo. Bouchat v. Baltimore Ravens, Inc., 241 F.3d 350
`(4th Cir. 2000) (Bouchat I). Our second decision affirmed a
`jury award of zero damages for the basic infringement.
`Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d
`514 (4th Cir. 2003) (Bouchat II). Our third decision, stem-
`ming from actions Bouchat filed against numerous NFL
`licensees that used the Flying B logo, affirmed judgments "in
`favor of the licensees because Bouchat [wa]s precluded from
`obtaining actual damages against them." Bouchat v. Bon-Ton
`Dep’t Stores, Inc., 506 F.3d 315, 328 (4th Cir. 2007) (Bouchat
`III).
`
`This appeal arises from an action brought by Bouchat on
`February 14, 2008, against the Baltimore Ravens Limited
`Partnership (the Ravens), the National Football League and
`NFL Productions LLC (together, the NFL), and The Balti-
`more Sun Company.1 Bouchat seeks an injunction prohibiting
`
`1The Baltimore Sun Company was dismissed with prejudice on August
`12, 2008, at Bouchat’s request.
`
`

`
`4
`
`BOUCHAT v. BALTIMORE RAVENS
`
`all current uses of the Flying B logo and requiring the destruc-
`tion of all items exhibiting the Flying B logo.
`
`The Ravens and the NFL currently display or otherwise
`make some use of the Flying B logo. The NFL offers for pub-
`lic sale Ravens highlight films of the 1996, 1997, and 1998
`seasons. They are sold for fifty dollars each. The films were
`shot during and produced shortly after each season, and they
`have not been edited since their first release for sale. The Rav-
`ens organization also plays a short highlight film from the
`1996 season on its large video screen during home games.
`
`The highlight films contain actual game footage, edited
`with slow motion effects, musical scores, and a narration. The
`Flying B logo is displayed in the films just as it was during
`each game: the logo appears primarily on the helmets of the
`Ravens players. The logo also appears in other NFL team
`highlight films from the 1996, 1997, and 1998 seasons for
`those teams that played against the Ravens in that period. In
`the 1996 and 1997 Ravens season highlight films, the Flying
`B logo is prominently displayed as the introductory graphic.
`In the 1997 film the Flying B logo is displayed on a flag used
`as a backdrop for an interview, and the logo appears as a
`graphic next to the name of the interviewee.
`
`The Flying B logo also appears in the lobby of the Ravens
`headquarters in Owings Mills, Maryland. The lobby is open
`to anyone entering the building. On one wall is a collage
`depicting the Ravens history, captioned "Ravens History
`Begins." Photos of the team’s first ever first-round NFL draft
`picks, Jonathan Ogden and Ray Lewis, are prominently dis-
`played in the collage. The photo of each man is from a Rav-
`ens football game, and their helmets display the Flying B
`logo. A glass cabinet in the lobby displays a sheet of Ravens
`football tickets from the 1996 inaugural season. The Flying B
`logo is displayed prominently on each ticket.
`
`Absent a valid defense of fair use, defendants’ current
`depictions of the Flying B logo would violate Bouchat’s
`
`

`
`BOUCHAT v. BALTIMORE RAVENS
`
`5
`
`copyright in the Shield logo. At a hearing before the district
`court on August 13, 2008, the parties agreed to submit the
`case to the court for a bench trial on the merits of defendants’
`fair use defense. On November 21, 2008, the district court
`issued a decision determining that all of defendants’ depic-
`tions of Bouchat’s copyright constituted fair use. Judgment
`was entered in favor of the Ravens and the NFL that same
`day. Bouchat appeals this final order, challenging the fair use
`determination. The Ravens and the NFL cross-appeal, assert-
`ing that Bouchat’s claim is precluded.
`
`II.
`
`The fair use defense presents a mixed question of law and
`fact. Harper & Row, Publishers, Inc. v. Nation Enters., 471
`U.S. 539, 560 (1985). In this arena we review the district
`court’s legal conclusions de novo and its findings of fact for
`clear error. Sundeman v. Seajay Soc’y, Inc., 142 F.3d 194, 201
`(4th Cir. 1998). However, when "the district court has found
`facts sufficient to evaluate each of the statutory [fair use] fac-
`tors, an appellate court need not remand for further factfind-
`ing but may conclude as a matter of law that the challenged
`use does not qualify as a fair use of the copyrighted work."
`Harper & Row, 471 U.S. at 560 (quotations omitted). The dis-
`trict court’s factfinding is not challenged in this appeal.
`
`Section 106 of the Copyright Act grants "a bundle of exclu-
`sive rights to the owner of the copyright," including the rights
`"to publish, copy, and distribute the author’s work." Harper
`& Row, 471 U.S. at 546-47. These rights, however, are "sub-
`ject to a list of statutory exceptions, including the exception
`for fair use provided in 17 U.S.C. § 107." Bond v. Blum, 317
`F.3d 385, 393 (4th Cir. 2003). Fair use is a complete defense
`to infringement. In other words, "the fair use of a copyrighted
`work . . . is not an infringement of copyright." 17 U.S.C.
`§ 107.
`
`Fair use was a creature of the common law until 1976 when
`the doctrine was codified in § 107 of the Copyright Act. See
`
`

`
`6
`
`BOUCHAT v. BALTIMORE RAVENS
`
`Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 576
`(1994). "Congress meant § 107 to restate the present judicial
`doctrine of fair use . . . and intended that the courts continue
`the common-law tradition of fair use adjudication." Id. at 577
`(quotations omitted). Accordingly, the doctrine of fair use
`continues to be applied as "an equitable rule of reason, for
`which no generally applicable definition is possible." Sunde-
`man, 142 F.3d at 202 (quotations omitted). The fair use
`inquiry is "not to be simplified with bright-line rules, for the
`statute, like the doctrine it recognizes, calls for case-by-case
`analysis." Campbell, 510 U.S. at 577. Nevertheless, it is
`appropriate to use the four statutory factors listed in § 107
`"[t]o guide the determination of whether a particular use is a
`fair use." Bond, 317 F.3d at 394. The four factors are as fol-
`lows:
`
`(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.
`
`We will proceed to measure each use of the Flying B logo
`by defendants against § 107’s four factors. We will, of course,
`keep in mind that the factors are not to be "treated in isola-
`tion," but rather "the results [are to be] weighed together, in
`light of the purposes of copyright." Campbell, 510 U.S. at
`578.
`
`

`
`BOUCHAT v. BALTIMORE RAVENS
`
`7
`
`III.
`
`A.
`
`Defendants’ first use of the Flying B logo that we analyze
`is its depiction in the season highlight films sold by the NFL
`and the highlight film played during the Ravens home football
`games.
`
`1.
`
`Under § 107’s first factor we consider "the purpose and
`character of [defendants’] use [of the Flying B logo], includ-
`ing whether such use is of a commercial nature or is for non-
`profit educational purposes." 17 U.S.C. § 107(1). This inquiry
`"may be guided by the [fair use] examples given in the pream-
`ble to § 107," Campbell, 510 U.S. at 578, specifically, "criti-
`cism, comment, news reporting, teaching . . . scholarship, or
`research," 17 U.S.C. § 107. The 1996 highlight film played by
`the Ravens during home football games is part of an entertain-
`ment package included in the price of tickets to the games.
`The longer season highlight films for 1996, 1997, and 1998
`are also objects of entertainment, marketed and sold to the
`public on the NFL’s website for fifty dollars. The core com-
`mercial purpose of the highlight films does not align with the
`preamble’s protected purposes of comment, news reporting,
`research, and the like.
`
`Of course, the preamble is not meant to be an exhaustive
`list of fair use examples. See Harper & Row, 471 U.S. at 561.
`To help determine what else might count, we ask "whether the
`new work merely supersedes the objects of the original cre-
`ation, or instead adds something new, with a further purpose
`or different character, altering the first with new expression,
`meaning or message; [we] ask[ ], in other words, whether and
`to what extent the new work is transformative." Campbell,
`510 U.S. at 579 (citing Pierre N. Leval, Commentary, Toward
`a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990)
`
`

`
`8
`
`BOUCHAT v. BALTIMORE RAVENS
`
`(Leval)) (quotations omitted). "A ‘transformative’ use is one
`that ‘employ[s] the [copyrighted work] in a different manner
`or for a different purpose from the original,’ thus transforming
`it." Vanderhye v. iParadigms, LLC, 562 F.3d 630, 638 (4th
`Cir. 2009) (quoting Leval, supra).
`
`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 Fly-
`ing 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.
`
`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 defen-
`dants first infringed Bouchat’s copyrighted Shield logo
`design: the Flying B logo identifies the football player wear-
`ing 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. Campbell, 510 U.S.
`at 579. It did not "alter[ ] the [logo] with new expression,
`meaning or message." Id. The films capture the logo as it
`originally appeared, and the logo remains a symbol identify-
`ing the Ravens.
`
`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." J.A. 56. 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 identify-
`ing the team. The logo continues to fulfill that purpose when-
`ever a highlight
`film
`is
`shown. Two hypothetical
`circumstances illustrate our point. In the first, an individual at
`home in her living room in 1996 watches a Ravens football
`game on television. The Flying B logo on the helmets of one
`team helps her identify the team as the Ravens. In the second,
`
`

`
`BOUCHAT v. BALTIMORE RAVENS
`
`9
`
`an individual at home today (2010) in his living room watches
`the 1996 Ravens season highlight film. The Flying B logo on
`the helmets of one team helps him identify the team as the
`Ravens. The logo plays the same role in each example. Its
`purpose is not transformed in the highlight film, viewed some
`fourteen years later.
`
`Simply filming football games that include the copyrighted
`logo does not transform the purpose behind the logo’s use into
`a 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.
`
`Merely labeling a use as historical does not create a pre-
`sumption of fair use. Even the six uses specifically listed in
`the preamble to § 107 do not create presumptive categories of
`fair use protection. A transformative purpose is also required.
`See Harper & Row, 471 U.S. at 561 ("This listing was not
`intended . . . to single out any particular use as presumptively
`a ‘fair’ use."). For example, the use of a copyrighted work in
`news reporting (a use listed in § 107’s preamble) must still be
`analyzed to determine if the purpose behind the use is trans-
`formative. See id. ("The issue is not what constitutes ‘news,’
`but whether a claim of newsreporting is a valid fair use
`defense to an infringement of copyrightable expression.")
`(quotations and emphasis removed). Again, a transformative
`purpose involves a use of the copyrighted work "in a different
`manner or for a different purpose from the original."
`Vanderhye, 562 F.3d at 638 (quoting Leval, supra, at 1111).
`The historical use analysis employed by the district court was
`
`

`
`10
`
`BOUCHAT v. BALTIMORE RAVENS
`
`fundamentally flawed because it did not sufficiently confront
`whether the challenged use had a transformative purpose.
`
`The district court erred in minimizing the display of the
`Flying B logo as "incidental to the primary [historical] pur-
`pose [of the films]." J.A. 55. The proper inquiry relates to
`whether there is a transformative purpose behind the use, and
`"a taking may not be excused merely because it is insubstan-
`tial with respect to the infringing work." Harper & Row, 471
`U.S. at 565 (emphasis in original). Again, because the logo is
`still being used as a logo, that is, as an identifying symbol of
`the Ravens, the purpose behind the use is not transformative.
`
`Three cases from the Second Circuit suggest that the pur-
`pose and character of the use here weigh against a finding of
`fair use in the highlight films. First, in Ringgold v. Black
`Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997),
`the Second Circuit found that the display of a poster of a
`copyrighted artwork as a set decoration for a television show
`did not constitute fair use, even though the show was creative
`and the copyrighted work was visible for a total of only 26.75
`seconds. According to the court, the purpose and character of
`the use weighed against a finding of fair use because the
`defendants "used [the artist’s] work for precisely a central
`purpose for which it was created — to be decorative." Id. at
`79. Second, in Davis v. The Gap, Inc., 246 F.3d 152, 156 (2d
`Cir. 2001), copyrighted decorative eyewear (specifically,
`"nonfunctional jewelry worn . . . in the manner of eye-
`glasses") was used by The Gap clothing company in one of
`its print advertisements. The Second Circuit found that the use
`was not a fair use and weighed the first factor against The
`Gap. The court "f[ou]nd nothing transformative about the
`Gap’s presentation of [the] copyrighted work" because "[t]he
`ad shows [the decorative eyewear] being worn as eye jewelry
`in the manner it was made to be worn." Id. at 174. Third, in
`Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d
`605 (2d Cir. 2006), a rock band’s copyrighted concert posters
`were reproduced in a biography of the band. The posters were
`
`

`
`BOUCHAT v. BALTIMORE RAVENS
`
`11
`
`shown in reduced size on an illustrated timeline of the band’s
`history. The Second Circuit found the use of the posters to be
`"transformatively different." Id. at 609. The original purpose
`of the posters was to advertise "the band’s forthcoming con-
`certs," while the transformative purpose of the posters in the
`biography was "to document and represent the actual occur-
`rence of [the] concert events featured on [the biography’s]
`timeline." Id.
`
`Here, just as in Ringgold and Davis, there is nothing trans-
`formative in the use of the Flying B logo in the season high-
`light films. The Flying B Logo remains a logo used to identify
`the Ravens, just like the decorative poster in Ringgold
`remained a decorative poster, and just like the decorative
`eyewear in Davis remained decorative eyewear worn as non-
`functional jewelry. Unlike in Bill Graham Archives, where the
`concert posters were put to transformative use (and no longer
`served the original advertising purpose), the logo here contin-
`ues to identify the Ravens, as it did originally.
`
`Consideration of the purpose and character of the use
`includes an examination of "whether [the] use is of a commer-
`cial nature or is for nonprofit educational purpose." 17 U.S.C.
`§ 701(1). Here, the commercial purpose behind the season
`highlight films "‘tends to weigh against a finding’ that the
`challenged use is a ‘fair use.’" Bond, 317 F.3d at 395 (quoting
`Harper & Row, 471 U.S. at 562). "The crux of the prof-
`it/nonprofit distinction is not whether the sole motive of the
`use is monetary gain but whether the user stands to profit
`from exploitation of the copyrighted material without paying
`the customary price." Harper & Row, 471 U.S. at 562.
`
`It is customary for NFL teams to license their copyrighted
`logos for use in any number of commercial products. See
`Bouchat III, 506 F.3d at 325. Of course, Bouchat did not
`receive the customary price for the use of his copyrighted
`logo in the highlight films. Because defendants’ use of
`Bouchat’s logo is non-transformative, we have no hesitation
`
`

`
`12
`
`BOUCHAT v. BALTIMORE RAVENS
`
`in concluding that the commercial nature of the use weighs
`against a finding of fair use. Cf. Campbell, 510 U.S. at 579
`("[T]he more transformative the new work, the less will be the
`significance of other factors, like commercialism, that may
`weigh against a finding of fair use.").
`
`Finally, because the codified fair use doctrine remains an
`"equitable rule of reason," Sundeman, 142 F.3d at 202, "the
`propriety of the defendant[s’] conduct" is "relevant to the
`‘character’ of the use," Harper & Row, 471 U.S. at 562 (quo-
`tations omitted). The Ravens and the NFL are not innocent
`third parties documenting the history of the Ravens or the
`Ravens logo. Instead, defendants were responsible for the
`original copyright infringement, the use of the Flying B as the
`Ravens logo. Defendants cannot assert that it is a fair use to
`profit from that very same copyright infringement when the
`purpose of the use is not transformed.
`
`In sum, the purpose and the character of the use of the Fly-
`ing B logo weighs against a finding of fair use in the depiction
`of the logo in the highlight films.
`
`2.
`
`The second statutory factor directs us to consider "the
`nature of the copyrighted work." 17 U.S.C. § 107(2). The
`copyrighted work here is a creative drawing, and "[c]reative
`works . . . are closer to the core of works protected by the
`Copyright Act." Sundeman, 142 F.3d at 204. We agree with
`the district court that the creative nature of Bouchat’s work
`"would . . . tend to indicate that making a copy would not be
`fair use." J.A. 56. This factor weighs against a finding of fair
`use of the Flying B logo in the highlight films.
`
`3.
`
`The third factor directs us to consider "the amount and sub-
`stantiality of the portion used in relation to the copyrighted
`
`

`
`BOUCHAT v. BALTIMORE RAVENS
`
`13
`
`work as a whole." 17 U.S.C. § 107(3). "Copying an entire
`work weighs against finding a fair use." Sundeman, 142 F.3d
`at 205.
`
`Bouchat’s entire work is reproduced in the highlight films.
`The "ordinary effect" of "the fact that the entire work is repro-
`duced . . . militat[es] against a finding of fair use." Sony Corp.
`of Am. v. Universal City Studios, Inc., 464 U.S. 417, 449-50
`(1984). Of course, the inquiry "harken[s] back to the first of
`the statutory factors, for . . . we recognize that the extent of
`permissible copying varies with the purpose and character of
`the use." Campbell, 510 U.S. at 586-87. Unless the use is
`transformative, the use of a copyrighted work in its entirety
`will normally weigh against a finding of fair use.
`
`The district court weighed the third factor in favor of find-
`ing a fair use because "the Flying B logo, although depicted
`in its entirety, is not a major component of the entire work in
`which it is used." J.A. 57. In other words, "the copyright pro-
`tected work is only an inconsequential portion of the overall
`work." Id. This conclusion was error because "a taking may
`not be excused merely because it is insubstantial with respect
`to the infringing work," for "no plagiarist can excuse the
`wrong by showing how much of his work he did not pirate."
`Harper & Row, 471 U.S. at 565 (quotations omitted) (empha-
`sis in original). What matters is the amount of the copyrighted
`work used. Here, Bouchat’s entire work was copied.
`
`We consequently weigh the third factor against a finding of
`fair use.
`
`4.
`
`The fourth factor directs us to consider "the effect of the
`use upon the potential market for or value of the copyrighted
`work." 17 U.S.C. § 107. "This last factor is undoubtedly the
`single most important element of fair use." Harper & Row,
`471 U.S. at 566. We "consider not only the extent of market
`
`

`
`14
`
`BOUCHAT v. BALTIMORE RAVENS
`
`harm caused by the particular actions of the alleged infringer,
`but also whether unrestricted and widespread conduct of the
`sort engaged in by the defendant would result in a substan-
`tially adverse impact on the potential market for the original."
`Campbell, 510 U.S. at 590 (quotations omitted). In other
`words, "to negate fair use one need only show that if the chal-
`lenged use should become widespread, it would adversely
`affect the potential market for the copyrighted work." Harper
`& Row, 471 U.S. at 568 (quotations omitted) (emphasis in
`original).
`
`We note first that, in pressing their affirmative defense, the
`Ravens and the NFL "have difficulty carrying the burden of
`demonstrating fair use without favorable evidence" about a
`potential market, especially since the entire copyrighted work
`is used without a transformative purpose. Campbell, 510 U.S.
`at 590-91. The Ravens and the NFL did not submit any evi-
`dence to the district court about potential markets.
`
`Despite their lack of evidence about potential markets,
`defendants argue that the fourth factor (market effect) weighs
`in favor of fair use because "[a] jury has already determined
`. . . that none of Defendants’ profits from their active use of
`the Flying B logo in merchandise was attributable to
`Bouchat’s work." Br. for Defendants-Appellees at 27 (citing
`Bouchat II, 346 F.3d at 519). However, a finding that none of
`defendants’ profits derived from the Flying B logo has no
`bearing on "the potential market for or value of the copy-
`righted work." 17 U.S.C. § 107(4). If a football team decides
`that it needs a logo, it can either design one itself or hire a
`graphic artist to design one. A market does not fail to exist for
`the product of the designer’s services (here, the logo) simply
`because the football team’s profits do not ultimately derive
`from the use of that logo.
`
`The existence of a market for Bouchat’s product is entirely
`consistent with the earlier jury finding. We affirmed the jury
`determination of zero damages despite the fact that the Rav-
`
`

`
`BOUCHAT v. BALTIMORE RAVENS
`
`15
`
`ens and the NFL "derive revenues from . . . royalties from
`licensees who sell official team merchandise." Bouchat II,
`346 F.3d at 523. The licensing of NFL logos for use in the
`sale of official team merchandise, in exchange for royalties,
`is exactly the type of potential market that exists for
`Bouchat’s copyrighted logo. Indeed, Bouchat could have pur-
`sued actual damages against the licensees of the Flying B logo
`if we had not concluded that he was barred by claim preclu-
`sion. Preclusion was triggered because Bouchat sued the Rav-
`ens and the NFL first in Bouchat I, where he did not pursue
`actual damages. See Bouchat III, 506 F.3d at 326-29.
`
`In fact, we know that there was a market for Bouchat’s
`copyrighted logo when the Ravens used the Flying B logo for
`the 1996, 1997, and 1998 seasons. In 1996 the NFL granted
`"licenses and other forms of permission" allowing the Flying
`B logo to be "used by hundreds of manufacturers, distributors,
`sponsors, etc. in connection with their respective business
`operations." Bouchat v. Champion Products, Inc., 327 F.
`Supp. 2d 537, 540 (D. Md. 2003). Defendants did not offer
`evidence to show that this licensing market no longer exists,
`and we conclude that there is a potential market for Bouchat’s
`copyrighted work. The NFL sells on its website a number of
`consumer products that are decorated with historic logos from
`various NFL teams and marketed as "throwback" merchan-
`dise. In light of the market in licensing historic logos, defen-
`dants’ unrestricted use of the infringing Flying B logo "would
`result in a substantially adverse impact on the potential mar-
`ket for [Bouchat’s] original" logo. Campbell, 510 U.S. at 590
`(quotations omitted).
`
`When a use is not transformative, market substitution is
`more likely. Cf. Campbell, 510 U.S. at 591 ("[W]hen . . . the
`second use is transformative, market substitution is at least
`less certain."); see also Vanderhye, 562 F.3d at 643 ("[T]he
`transformative nature of the use is relevant to the market
`effect factor."). Moreover, "when a commercial use amounts
`to mere duplication of the entirety of an original it clearly
`
`

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`16
`
`BOUCHAT v. BALTIMORE RAVENS
`
`supersedes the objects of the original and serves as a market
`replacement for it, making it likely that cognizable market
`harm to the original will occur." Campbell, 510 U.S. at 591
`(quotations omitted). We have already found that defendants’
`use of the Flying B logo in the highlight films is not transfor-
`mative and that the logo is used for a commercial purpose.
`These findings, and defendants’ failure to show the lack of a
`market, require us to weigh the fourth factor against a finding
`of fair use.
`
`5.
`
`We have considered each of the four statutory factors sepa-
`rately and found that each one goes against a finding of fair
`use. The codified fair use doctrine is applied as "an equitable
`rule of reason," Sundeman, 142 F.3d at 202, which means that
`the results of every factor’s analysis are weighed together in
`determining whether there is fair use, Campbell, 510 U.S. at
`578. After weighing together the results from the analyses of
`the four factors, we easily conclude that the use of the Flying
`B logo in the highlight films is not a fair use. The Ravens and
`the NFL originally violated Bouchat’s copyright by using his
`logo as the Ravens logo. Highlight films that come along later
`and depict that same use, without transformation, cannot stand
`as a fair use. Therefore, the depiction of the Flying B logo in
`the season highlight films sold by the NFL and the highlight
`film played during the Ravens home football games is an
`infringement of Bouchat’s copyright.
`
`B.
`
`Next, we analyze the depictions of the Flying B logo in the
`lobby of the Ravens corporate headquarters, again using
`§ 107’s four factors.
`
`1.
`
`As we said above, evaluation of § 107’s first factor — pur-
`pose and character of the use — may be guided by the fair use
`
`

`
`BOUCHAT v. BALTIMORE RAVENS
`
`17
`
`examples mentioned in § 107’s preamble. Supra at 7. The
`lobby of the Ravens headquarters has an area that is dedicated
`to the history of the team. The use of a copyrighted work in
`a museum-like setting is akin to the fair use of a work for
`"teaching . . ., scholarship, or research," fair uses listed in the
`preamble to § 107. 17 U.S.C. § 107. The Flying B logo is dis-
`played in the Ravens lobby on actual game tickets from the
`inaugural season and in two large photos of the team’s first
`ever first-round draft picks. These depictions of the logo are
`consistent with the fair use display of copyrighted material in
`a museum.
`
`Most important, the use of the logo in a museum-like set-
`ting "adds something new" to its original purpose as a symbol
`identifying the Ravens. Campbell, 510 U.S. at 579. The sea-
`son tickets and the player photos adorned with the Flying B
`logo are displayed to represent the inaugural season and the
`team’s first draft picks. In this way, the logo is used "not for
`its expressive content, but rather for its . . . factual content."
`Bond, 317 F.3d at 396. This use is comparable to the use of
`the concert posters in Bill Graham Archives, 448 F.3d at 609,
`where the posters documented the fact of past concerts, a
`transformatively different purpose from their original use as
`advertisements for future concerts.
`
`Finally, unlike 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. "If a
`challenged use of a copyrighted work is noncommercial, the
`party alleging infringement must demonstrate ‘either that the
`particular use is harmful, or that if it should become wide-
`spread, it would adversely affect the potential market for the
`copyrighted work.’" Bond, 317 F.3d at 395 (quoting Sony,
`464 U.S. at 451). Bouchat presented no evidence as to how
`the lobby depictions have harmed or might harm his market,
`and the apparent noncommercial nature of the lobby use
`therefore "weighs heavily against [his] infringement claim"
`with respect to that use. Id.
`
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`18
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`BOUCHAT v. BALTIMORE RAVENS
`
`"[I]t is appropriate to evaluate [the use’s] commercial status
`on its own terms." 4-13 David Nimmer & Melville, Nimmer
`on Copyright § 13.05[A][1][c]. Here, the Ravens were "not
`gaining direct or immediate commercial advantage from" the
`depictions of the logo in the lobby "— i.e., [the team’s] prof-
`its, revenues, and overall commercial performance were not
`tied to" this use. Am. Geophysical Union v. Texaco, Inc., 60
`F.3d 913, 921 (2d Cir. 1994). At bottom, we find no commer-
`cial use because no fee is charged to view the displays in the
`lobby of the Ravens corporate headquarters.
`
`Although the Ravens remain responsible for the original act
`of infringement, the no