Opinion
Civil Action Nos. MJG–11–2878 MJG–12–1495 MJG–12–1905.
2012-11-19
Frederick E. BOUCHAT, Plaintiff v. NFL PROPERTIES LLC, et al., Defendants. Frederick E. Bouchat, Plaintiff v. NFL Enterprises LLC, et al., Defendants. Frederick E. Bouchat, Plaintiff v. Baltimore Ravens Limited Partnership, Defendant.
Howard J. Schulman, Schulman and Kaufman LLC, Baltimore, MD, for Plaintiff. Mark D. Gately, Andrea William Trento, Hogan Lovells US LLP, Gerard Patrick Martin, Paul Martin Flannery, Rosenberg Martin Greenberg LLP, Baltimore, MD, Rachel Elizabeth Epstein, Robert Lloyd Raskopf, Todd Anten, Quinn Emanuel Urquhart and Sullivan LLP, Elizabeth A. McNamara, Samuel M. Bayard, David Wright Tremaine LLP, New York, NY, for Defendants.
Howard J. Schulman, Schulman and Kaufman LLC, Baltimore, MD, for Plaintiff. Mark D. Gately, Andrea William Trento, Hogan Lovells US LLP, Gerard Patrick Martin, Paul Martin Flannery, Rosenberg Martin Greenberg LLP, Baltimore, MD, Rachel Elizabeth Epstein, Robert Lloyd Raskopf, Todd Anten, Quinn Emanuel Urquhart and Sullivan LLP, Elizabeth A. McNamara, Samuel M. Bayard, David Wright Tremaine LLP, New York, NY, for Defendants.
DECISION RE: FAIR USE ISSUES
MARVIN J. GARBIS, District Judge.
The Court has before it motions for summary judgment
based upon a fair use defense in each of the three above-captioned cases.
Defendants' Motion for Summary Judgment [Document 26 in MJG–11–2878], Defendants' Motion for Summary Judgment on Fair Use [Document 20 in MJG–12–1495] and Defendants' Motion for Summary Judgment on Fair Use [Document 11 in MJG–12–1905].
In each case, the Defendants contended, and the Court agreed, that very limited discovery was necessary prior to the presentation of motions for summary judgment on the basis of a fair use defense. Accordingly, following limited discovery, the instant motions were filed.
There is no contention that further discovery is needed to oppose the summary judgment motions.
The Court has considered the materials submitted by the parties relating to the motions as well as the arguments of counsel presented at a hearing. The Court issues this decision determining the validity vel non of the fair use defense in regard to each of the three pending motions.
I. BACKGROUND
As detailed in no less than seven (so far) published decisions of this Court and the United States Court of Appeals for the Fourth Circuit,
in late 1995, Plaintiff, Frederick E. Bouchat (“Bouchat”) created a drawing referred to as the “Shield Drawing” and obtained copyright rights therein.
Bouchat v. Baltimore Ravens, Inc., 241 F.3d 350 (4th Cir.2001); Bouchat v. Baltimore Ravens, Inc., 215 F.Supp.2d 611 (D.Md.2002); Bouchat v. Baltimore Ravens, Inc., 346 F.3d 514 (4th Cir.2003); Bouchat v. Champion Products, Inc., 327 F.Supp.2d 537 (D.Md.2003); Bouchat v. The Bon–Ton Dept. Stores, Inc., 506 F.3d 315 (4th Cir.2007); Bouchat v. Baltimore Ravens Ltd. P'ship, 587 F.Supp.2d 686 (D.Md.2008); Bouchat v. Baltimore Ravens Ltd. P'ship, 619 F.3d 301 (4th Cir.2010).
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The National Football League (“NFL”) and the Baltimore Ravens
infringed Bouchat's copyright by copying the Shield Drawing and creating what is referred to as the “Flying B Logo.”
In view of the numerous entities involved in the litigation, the Court's references to the “NFL” and “Ravens” are intended, collectively, to refer to all pertinent entities affiliated with the league and the team respectively.
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The Ravens used the Flying B Logo as the teams' primary logo during the first three (1996, 1997, and 1998) seasons.
Bouchat sued the NFL and Ravens and established infringement of his copyright in the Shield Drawing by their use of the Flying B Logo. Bouchat, however, recovered no damages due to a jury finding that no part of the profits of the infringers, relating to the infringements then at issue, was attributable to the copyright infringement. Judgment awarding no damages was affirmed by the United States Court of Appeals for the Fourth Circuit.
Bouchat v. Baltimore Ravens, Inc., 346 F.3d 514 (4th Cir.2003).
In 2008, Bouchat sued the Ravens and the NFL, seeking injunctive relief to halt the then ongoing use of the Flying B Logo in three manners:
1. The sale of season highlight films showing the 1996–98 Ravens on which the Flying B Logo was visible,
2. The display at football games of film clips of Ravens' teams from 1996–98 on which the Flying B Logo was visible, and
3. The display at the Ravens team headquarters of photographs of players and memorabilia (such as a first game ticket) on which the Flying B Logo was visible.
This Court, deciding the case on an agreed submitted record, held that there was no infringement because each of these uses was a non-infringing fair use under 17 U.S.C. § 107. Bouchat v. Baltimore Ravens Ltd. P'ship, 587 F.Supp.2d 686 (D.Md.2008). On appeal, the United States Court of Appeals for the Fourth Circuit reversed in part, agreeing that the aforesaid display was a fair use, but holding that the sale of highlight films and display of film clips at football games was not. Bouchat v. Baltimore Ravens Ltd. P'ship (“Bouchat 2010”), 619 F.3d 301 (4th Cir.2010). Thus, in Bouchat 2010, the case was remanded with directions to this Court to proceed to determine whether to grant injunctive relief.
The proceedings on remand remain pending at this writing.
In the three above-captioned cases, Bouchat has sued for infringement of his copyright in the Shield Drawing due to the respective Defendants' use of the Flying B Logo as follows:
+-----------------------------------------------------------------------------+ ¦Use At Issue ¦Defendant(s) ¦Case ¦ +-----------------------+-------------+---------------------------------------¦ ¦Documentary videos ¦NFL ¦12–1495 (“the Documentary Video Case”) ¦ +-----------------------+-------------+---------------------------------------¦ ¦Pictures on stadium ¦Ravens ¦12–1905 (“the Stadium Wall Pictures ¦ ¦walls ¦ ¦Case”) ¦ +-----------------------+-------------+---------------------------------------¦ ¦Madden NFL game ¦NFL & EA
¦11–2878 (“the Madden NFL Game Case”) ¦ +-----------------------------------------------------------------------------+
Electronic Arts Inc. (“EA”).
The fair use determination in each case is based upon the same legal principles and the benefit of the decision of the United States Court of Appeals for the Fourth Circuit in Bouchat 2010.
II. SUMMARY JUDGMENT STANDARD
A motion for summary judgment shall be granted if the pleadings and supporting documents “show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2).
The well-established principles pertinent to summary judgment motions can be distilled to a simple statement: The Court may look at the evidence presented in regard to a motion for summary judgment through the non-movant's rose-colored glasses, but must view it realistically. After so doing, the essential question is whether a reasonable fact finder could return a verdict for the non-movant or whether the movant would, at trial, be entitled to judgment as a matter of law. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir.1991).
The Court does not find that genuine issues of material fact
would prevent a grant of summary judgment in regard to the instant motions.
I.e., potentially outcome determinative fact issues.
III. FAIR USE PRINCIPLES
A copyright owner's ability to obtain relief for an unauthorized use of a copyrighted work is subject to a statutory exception for “fair use” provided in 17 U.S.C. § 107. Bouchat 2010, 619 F.3d at 307.
Courts have traditionally regarded fair use of a copyrighted work as “a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.” Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 549, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (quoting H. Ball, Law of Copyright and Literary Property 260 (1944)).
A person who makes fair use of a copyrighted work is not an infringer even if such use is otherwise inconsistent with the exclusive rights of the copyright owner. See17 U.S.C. § 107 (providing that “the fair use of a copyrighted work ... is not an infringement of copyright”).
The doctrine of fair use is an equitable one, and 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.’ ” Bouchat 2010, 619 F.3d at 308 (quoting Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 577, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994)). Congress has enumerated four nonexclusivefactors for courts to consider when evaluating whether a particular use is a fair use:
(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.
17 U.S.C. § 107.
The use of the Flying B Logo in each of the three cases at issue is measured in light of these factors, keeping in mind, as directed by the Fourth Circuit, that “the factors are not to be treated in isolation, but rather the results are to be weighed together, in light of the purposes of copyright.” Bouchat 2010, 619 F.3d at 308 (quoting Campbell, 510 U.S. at 578, 114 S.Ct. 1164 (internal quotation marks omitted)). A. Purpose and character of use
The first factor calls upon courts to consider “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107. Here, courts generally consider a set of subfactors, including the commercial or noncommercial character of the use, the degree to which the use is transformative, the defendant's good or bad faith, and whether the purpose of the use falls within one of the categories of purposes mentioned in the preamble of section 107.
1. Protected purposes
In assessing the character of the use, courts consider the specific examples set forth in section 107's preamble—criticism, comment, news reporting, teaching, scholarship, and research. 17 U.S.C. § 107. Certainly, this is not intended to be an exhaustive list, nor even presumptively fair, but it does guide the court as being representative of uses that are protected. Bouchat 2010, 619 F.3d at 308, 309.
2. Commerciality
Although the commerciality of the defendant's use is merely one factor among others that a court may consider as part of its analysis of the purpose and character of the use, a commercial purpose “tends to weigh against a finding that the challenged use is a fair use.” Id. at 310–11;Campbell, 510 U.S. at 583–84, 114 S.Ct. 1164. “The crux of the profit/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 [protected] material without paying the customary price.” Bouchat 2010, 619 F.3d at 311 (quoting Harper & Row, 471 U.S. at 562, 105 S.Ct. 2218).
3. Transformative use
In Campbell, the Supreme Court suggested that an important factor to consider in whether a use was fair was whether the second use was “transformative”—whether it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” 510 U.S. 569, 579, 114 S.Ct. 1164.
“A transformative use is one that employs the copyrighted work in a different manner or for a different purpose from the original, thus transforming it.” Bouchat 2010, 619 F.3d at 309–10 (quoting Vanderhye v. iParadigms, LLC, 562 F.3d 630, 638 (4th Cir.2009) (internal quotation marks omitted)). A use may be transformative in function or purpose even if the original work has not been altered. Vanderhye, 562 F.3d at 639. Certainly, for the analysis to have meaning, it cannot be viewed as a binary concept, but one of degree—to what extent is the new work transformative? See Bouchat 2010, 619 F.3d at 308 (“we ask, in other words, whether and to what extent the new work is transformative”).
4. Propriety of conduct
“[T]he propriety of the defendants' conduct is relevant to the character of the use.” Id. at 311 (quoting Harper & Row, 471 U.S. at 562, 105 S.Ct. 2218 (internal quotation marks omitted)). In a sense, this subfactor asks if the use is “fair,” because “[f]air use presupposes good faith and fair dealing.” See Harper & Row, 471 U.S. at 562, 105 S.Ct. 2218.
A defendant's good or bad faith is a consideration, but not necessarily a determinative one, impacting the overall weighing of fair use factors. NXIVM Corp. v. Ross Inst., 364 F.3d 471, 478–79 (2d Cir.2004). B. Nature of the copyrighted work
Consider also the Supreme Court's variation of the “golden rule” of fair use: “Take not from others to such an extent and in such a manner that you would be resentful if they so took from you.” Harper & Row, 471 U.S. at 550 n. 3, 105 S.Ct. 2218.
This factor “calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.” Campbell, 510 U.S. 569, 586, 114 S.Ct. 1164. The Fourth Circuit has agreed with this Court's finding that “the creative nature of Bouchat's work would tend to indicate that making a copy would not be fair use.” Bouchat 2010, 619 F.3d at 311 (internal quotation omitted). C. Amount and substantiality
To analyze this factor, courts consider “the amount and substantiality of the portion” copied by the defendant “in relation to the copyrighted work as a whole.” Id. at 311 (citing 17 U.S.C. § 107). To state it simply, the more the defendant takes of the plaintiff's work, the less likely it is that the taking will qualify as fair use.
If an entire work is copied, as is the situation in each of the three cases at issue, this weighs against finding a fair use. Id. at 311 (citing Sundeman v. Seajay Soc., Inc., 142 F.3d 194, 205 (4th Cir.1998)). Copying the entire work does not, however, preclude a finding of fair use and must be considered in light of the other factors. Sundeman, 142 F.3d at 205–206. D. Effect on the Market
The fourth factor requires courts to consider the effect of the use “upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107. The Harper & Row Court considered this factor to be the most important one in the context of that case, in which the defendant preempted the plaintiff's market by publishing the infringing work before the plaintiff had the opportunity to publish and establish its market. See471 U.S. at 566, 105 S.Ct. 2218. The Campbell Court later stated, however, that all factors are to be explored, and that the market effect factor, “no less than the other three, may be addressed only through a sensitive balancing of interests.” 510 U.S. at 590 n. 21, 114 S.Ct. 1164. “Market harm is a matter of degree, and the importance of this factor will vary, not only with the amount of harm, but also with the relative strength of the showing on the other factors.” Id.
A “purpose of copyright is to create incentives for creative effort,” and “a use that has no demonstrable effect upon the market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create.” Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 450, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984).
At the same time, “[t]he mere absence of measurable pecuniary damage does not require a finding of fair use.” Marcus v. Rowley, 695 F.2d 1171, 1177 (9th Cir.1983).
Although the Campbell Court later rejected the Sony Court's presumption of market harm, the rationale of this statement still holds true.
Certainly, any use that interferes with a copyright owner's market would weigh heavily against fair use, but the absence of harm to the market does not necessarily justify the secondary use. See Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1136 (1990).
IV. FAIR USE DETERMINATIONS
A. Stadium Picture Displays
1. The Displays
The Ravens have displays at their home stadium, M & T Stadium (“the Stadium”), relating to Baltimore's sports history. Three of these displays (“the Stadium Picture Displays”) include pictures on which the Flying B Logo is visible.
The Timeline Displays: On the second level concourse, there are several large displays that highlight significant times in Baltimore's football history from the Nineteenth Century, through the Colt era, the Canadian Football League years, and the time of the Ravens. The 1996 display, prominently framing the entrance to a Women's restroom, includes pictures of the first home-game ticket and program on which the Flying B Logo can be seen.
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The Highlight Reel: The “Highlight Reel” is a display of still photographs located in the Club Level area near locations at which food and drink is sold.
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The photographs in the Highlight Reel are accompanied by text that provides factual information about significant events in the Ravens' history. The Highlight Reel includes photographs on which the Flying B Logo is visible, i.e.,
The Ravens inaugural uniforms. June 5, 1996. “The new Ravens' logo, colors and uniforms are unveiled in a fashion show at Harborplace.”
Jonathan Ogden wearing a Ravens collared shirt. April 20, 1996. “Ravens select UCLA T Jonathan Ogden with their 1st-ever draft choice (4th overall). Miami LB Ray Lewis is selected with the team's 2nd pick in the 1st round (26th overall).”
Peter Boulware wearing the Ravens helmet. April 19, 1997. “The Ravens select Peter Boulware with their 1st pick in the 1997 draft (4th overall). Boulware went on to win NFL Defensive Rookie of the Year honors finishing with 11.5 QB sacks, the 4th-best sack total by a rookie in NFL history.”
The new Stadium at its debut (with an IMAGE
“Quarterback Vinny Testaverde scores the First Touchdown in franchise history on a 59–yard run during the Ravens' 19–14 Win against Oakland on September 1, 1996.”
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“Wide Receiver Jermaine Lewis ties an NFL Single–Game Record with two punt return Touchdowns (89 yards and 66 yards), earning Baltimore a 31–24 win over Seattle on December 7, 1997.”
2. The Fair Use Analysis
With one exception, the facts relating to the fair use analysis of the Stadium Picture Displays are essentially the same as those presented by the headquarters lobby displays held to constitute fair use in Bouchat 2010. The sole material difference is that the Stadium Picture Displays are in the Stadium, so the general public must purchase a ticket to obtain entry.
a. Purpose and character of use
The Court finds the purpose and character of use factor to favor a finding of fair use. There is no doubt that the purpose of the Stadium displays is, like the headquarters lobby displays, “consistent with the fair use of copyrighted material in a museum.”
Bouchat 2010, 619 F.3d at 313.
The Court must note the ironic happenstance that the NFL benefits from analogizing M & T Stadium to a museum. No Baltimore football fan can forget the unappreciated suggestion made by NFL Commissioner Paul Tagliabue, when refusing to grant a franchise to Baltimore, that the city use the funds set aside for a stadium to build a museum. Perhaps the NFL will now agree with the Baltimore fans who said, when the Ravens opened their stadium, “ Mr. Tagliabue, this is our museum.”
i. Commerciality
It is true that a member of the public must buy a ticket to get into the area in which the Stadium Picture Displays are located.
However, in context, the static picture displays are not any meaningful part of the incentive for a patron to buy a game ticket. Nor can the static displays be considered a part of the game experience as are the video clips shown on the scoreboard during games. The video clips are specially selected for that specific game's entertainment; the photographic displays are hanging for viewing during all games, and at all times, including non-game events or arranged tours. Moreover, there is no direct or immediate commercial advantage from the displays.
Indeed, entry to the Club Level is had only at a premium price.
On balance, there is some, albeit indirect, commercial use that would factor against a fair use finding absent a substantial transformative use.
ii. Transformative use
As stated in Bouchat 2010, “[t]he season 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.’ ” 619 F.3d at 314 (quoting Bond v. Blum, 317 F.3d 385, 396 (4th Cir.2003)). “This use is comparable to the use of the concert posters in Bill Graham Archives, where the posters documented the fact of past concerts, a transformatively different purpose from their original use as advertisements for future concerts.” Id. (citing Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609 (2d Cir.2006) (internal citations omitted)).
iii. Propriety of conduct
It is true that the Ravens are an originator of the putative infringement at issue. However, there is nothing to put into doubt the Ravens' good faith in believing that the uses at issue were non-infringing fair uses.
b. Nature of the Work
There is no doubt that the nature of the copyrighted work tends to weigh against a finding of fair use. However, as stated in Bouchat 2010, “the [nature of the work] factor may be of limited usefulness where the creative work of art is being used for a transformative purpose.” Id. at 315 (quoting from Bill Graham Archives, 448 F.3d at 612). In view of the substantial transformative use, this factor does not weigh against a fair use finding.
c. Amount and substantiality
The entirety of the copyrighted work was used. As stated in Bouchat 2010:
The Ravens have no choice but to use the entire copyrighted work if they wish to display the inaugural season tickets and the photographs of their first ever draft picks in their original team dress. The tickets were originally printed with the entire logo, and the players dressed with the entire logo on their helmets. Therefore, in order to fulfill the legitimate transformative purpose of exhibiting the Ravens inaugural season tickets and the photos of the team's first ever draft picks, the entire work has to be displayed.
Id. at 315.
As did the court in Bouchat 2010, this Court finds that the use of the entire copyrighted work is neutralized by the transformative nature of the use.
d. Effect on the Market
The use of the Flying B Logo in the Stadium Picture Displays is transformative and only minimally, if at all, commercial. The Court does not find, as urged by the defense, that the absence of a market in which Bouchat himself could exploit the copyrighted work is a major factor in the context of the instant case. However, the transformative nature of the use, and the minimal commercial aspect of the use, largely offset the negative aspects of this factor.
e. Resolution
The first (purpose and character of the use) factor weighs heavily in favor of a finding of fair use, the second (nature of the copyrighted work) and fourth (effect on the market) factors weigh only slightly against a finding of fair use, and the third (amount and substantiality) is neutral.
Considering the § 107 factors together, the Court finds that the use of the Flying B logo in the Stadium Picture Displays is a non-infringing fair use.
B. Documentary Videos
1. The Videos
Bouchat sued the NFL
for infringement of his copyright in the Shield Drawing by virtue of the use of the Flying B Logo in segments of three documentary videos (collectively referred to as “the Documentaries”):
As noted above, the term “NFL” is used herein to refer, collectively, to all entities affiliated with the National Football League.
1. Top Ten Series: Draft Classes Episode
2. Top Ten Series: Draft Busts Episode; and
3. Sound FX Series: Ray Lewis Episode.
The Documentaries were produced by the NFL and made available to viewers on certain internet sites
and cable television networks.
Including NFL.com and hulu.com, a website offering ad-supported streaming video of TV shows, movies, clips, and other film footage from various networks and studios.
Including the NFL Network.
The Top Ten Series: The Top Ten Series is a series of documentaries, each of which presents ten segments related to NFL players, coaches, or events from NFL history, accompanied by archival footage and interviews.
The episode Top Ten: Draft Classes provides segments on the all-time ten best NFL draft classes, including a four-minute segment on the Ravens 1996 draft class. Two fleeting IMAGE
Moreover, at least some NFL teams currently offer for sale replicas of throwback uniforms, and the NFL sells on its website a number of consumer products that are decorated with historic logos from various NFL teams. Since there is a market for memorabilia, it only stands to reason that there is a potential market for the Flying B Logo.
See Bouchat 2010, 619 F.3d at 313 (“we conclude that there is a potential market for Bouchat's copyrighted work”).
After all, it was the logo on the Ravens' inaugural uniform.
It must be borne in mind that Bouchat's copyrighted work is the Shield Drawing, not the Flying B Logo, a work derived from Bouchat's. It is notable that throughout the course of the Bouchat litigation, all concerned—including all judges—appear to recognize that the absence of any market for a license of Bouchat's copyrighted work, the Shield Drawing, does not make the Flying B Logo a fair use.
The instant litigation arises in a context in which a user of the Flying B Logo needs consent of both Bouchat and the NFL. There is, no doubt, a market for the Flying B Logo. Hence, it would be unsound to find that there is no market for Bouchat's copyrighted work since that work is, itself, an integral element of the Flying B Logo. Indeed, Bouchat is analogous to the holder of a patent on an item that is of commercial value only if it incorporatesthe invention of an improvement patent. There would be no market for the product produced by virtue of the initial patent, but the improvement patent enables a marketable product.
The Court finds that Bouchat's inability, on his own, to license his copyrighted work, the Shield Drawing, is not a factor in favor of permitting fair use.
e. Resolution
The first (purpose and character of the use), second (nature of the copyrighted work), and third (amount and substantiality) factors weigh heavily against a finding of fair use. The fourth (effect on the market) factor is, if not neutral, only slightly favoring a finding of fair use.
Considering the § 107 factors together, the Court finds that the use of the Flying B Logo in the Game is not a fair use.
V. CONCLUSION
For the foregoing reasons the Court finds that:
1. The uses of Bouchat's copyrighted work in the Stadium Picture Displays at issue were non-infringing fair uses.
2. The uses of Bouchat's copyrighted work in the Documentaries at issue were non-infringing fair uses.
3. The uses of Bouchat's copyrighted work in the versions of Madden NFL at issue were not fair uses.