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When History Really Just Commercial Nostalgia?

Last week I wrote about a copyright lawsuit involving the Baltimore Ravens, and in so doing, managed also to mention the San Francisco 49ers*. They both won their respective games and will now meet in the Super Bowl. In the future, I will charge for this sort of thing.

* Because I digressed into the history of the Ravens, who kind of used to be the Cleveland Browns, who used to be in the rival All-American Football League, until it folded and the Browns were invited into the NFL, along with … the 49ers. It’s not very a very direct connection, but I never let directness or the lack thereof interfere with my discussions about professional football, which I discuss with the sort of passion reserved only for kids who were always about 20 pounds too light and a half-step too slow to have a reasonable chance at ever starting.

I also mentioned, in connection with said copyright lawsuit, that a recent decision in that lawsuit (only the latest of many) yielded not one but two separate fair-use rulings.* And that both of these rulings were worthy of inclusion in Is it Fair Use?, which, as you know, is the fast-paced, brain-teasing game that’s sweeping the nation, or it would, except we didn’t do it at all last year because there weren’t any worthy cases. So, thank you Mr. Bouchat and your raven-holding-a-shield design for supplying us with TWO worthy items.

* Actually, three, but the middle one isn’t worthy of Is it Fair Use?

Last week, I discussed the part of the decision that dealt with the Ravens’ use of their old “Flying B” logo* on items that might be described as historical artifacts: e.g., an opening day ticket that happened to have the old logo on it; and a photograph of Vinny Testaverde, wearing a helmet with the old logo on it, scoring the Ravens’ first-ever touchdown. The court held that these uses were fair uses. It found such historical uses to be “transformative” because they are being used for a different purpose than before.

* Which really should be called the “Wingèd Shield” logo, because it looks like shield that had sprouted wings. And, as Terry Pratchett has explained (in a certain book), if you put wings on something like, say, a hat, you don’t pronounced it “wing’d,” but “wing-ed.” And is a hat qualitatively different from a shield in this context? Anyway, the logo is not very professionally done, considering it was done by professionals, apparently because Bouchat’s amateur design had somehow gotten passed along to NFL Properties’ professional designer with the mistaken impression that it was the Ravens’ preferred design. Bouchat’s design is arguably superior to the Ravens’ eventual design because Bouchat has a raven sort of holding the shield, which at least has some basis in heraldry (with a symbolic beast holding the coat of arms). 

This week, we look at Bouchat’s claim against Electronic Arts (“EA”). As you probably know, EA makes a computer game called Madden NFL. Maybe you’ve heard of it? You may also have heard of, or at least noticed, the NFL’s emphasis on “throw-backs,” i.e., the use of old, historical uniforms* by modern teams. This not only stokes a sense of nostalgia in older fans, but it increases the number of uniforms that a fan might purchase, which in turns is revenue for the NFL.

* Some of which are hideous. 

Well, Madden got into the “throwback” act. In recent versions of the game, you can play using throwback uniforms. Which is fine. Except the Ravens are so new that they have only one set of throwback uniforms to choose from. And, naturally, those throwback uniforms have the Wingèd Shield logo on them.

EA argued that the use of the Wingèd Shield logos was necessary for historical accuracy. Bouchat argued this was balderdash, that the Wingèd Shields were for nostalgia’s sake. Of course, the two concepts are hardly mutually exclusive….

How did the court rule? Review the fair-use factors, make your guess, then click here for the answer.

Rick Sanders

Rick is currently General Counsel for Software Freedom Conservancy. Previously, he has been practicing law as an intellectual-property litigator since 2000.