No Fair Use!

If you got here some other way and wish to play Is it Fair Use?, go read the problem first!

The court agreed with Bouchat that the nostalgia value outweighed the historical value. If you think about, the two often go hand in hand*. The stadium displays (which were fair uses) are clearly historical, but surely they’re a little bit nostalgic, too. In theory, someone could think: “Ah, for the good old days when Vinny Testaverde was quarterback.” Stop laughing. It could happen.

* To be sure, nostalgia can be, and often is, based on false history, such as any reference to a “golden age” or how things were better when we had radio instead of TV, we wrote letters instead of emails, “people knew their place,” people worked their own land, etc.

But the court found a qualitative difference between the stadium displays and Madden. It’s hard to explain without resorting to intent. But when you see a picture of Vinny Testaverde scoring a touchdown, or an opening day ticket, you think first and foremost that these are means of documenting the past.

By contrast, it seems a very odd use of a computer game to gain some sort of accurate historical insight into the past. True, the throwback uniforms are historically accurate, but the draw is your emotional connection with the old uniforms.

The court then reasoned that the nostalgia of the throwback uniforms were part of the commercial appeal of the game. The option of using throwback uniforms, including the Ravens’, made consumers morel likely to buy the game.

EA argued that it reasonably relied on a license from the NFL. That’s not a defense, of course, since the NFL can’t license what it can’t legally use in the first place.* But EA thought that should be a factor in favor of fair use. The court, however, held that, while bad intentions can hurt your fair-use case, good intentions can’t help.

* Hopefully, EA insisted on an indemnity clause!

Regarding effect on the market, the court recognized that Bouchat was in a strange situation. His copyright was in his raven-holding-a-shield drawing. Nobody wants that for nostalgia value. What they want is the Wingèd Shield logo, which is an adaptation of Bouchat’s work. NFL Properties has a separate copyright in its contributions to the Wingèd Shield, which Bouchat can’t license because it’s not his. But the NFL can’t license the Wingèd Shield logo either because Bouchat owns the underlying copyright. In a sense, they block each other from exploiting the Wingèd Shield.

The court reasoned that this conundrum didn’t hurt Bouchat’s case. There was clearly a market for throw-back uniforms, and if the NFL wanted to exploit it, it needed Bouchat’s permission. Just because there isn’t a market for Bouchat’s drawing doesn’t mean there isn’t a market for adaptations of his drawing. The fact that the adaptation happens to be already in existence shouldn’t change the analysis.

Copyright and Historical Research

Perhaps another way to look at it is that you can’t use copyright law to erase or suppress history. The history of the Ravens franchise or of football in Baltimore may not be as important as the history of World War II, but we’re not really to judge what’s important.

But that’s naïve. Copyright interferes with our ability to document history all the time. It’s not just things like the best-known video of MLK’s I Have a Dream speech, but anonymous photographs of important events. With the MLK video, at least you know where to go to get a copy. With thousands of unsourced photographs, showing all kinds of important events of the 20th century, you don’t even know who took the photograph, or if you did, who ended up inheriting the copyright in the photograph.

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.