‘Madden’ maker drawn into Ravens’ logo fight

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The designer of the original “Flying B” Ravens logo has filed a motion to add the makers of the ultra-popular Madden NFL 11 video game to his longstanding copyright infringement dispute with the team and the NFL.

Frederick E. Bouchat’s attorney, Howard J. Schulman, said he heard through the grapevine that Electronic Arts Inc. had programmed a “retro” feature into Madden in which the Ravens’ uniforms bear Bouchat’s symbol. Schulman, of Schulman & Kaufman LLC, then verified it by printing out screen shots from the game with the logo in them.

The attorney for the Ravens and the NFL punted responsibility for the use of the logo to EA during a hearing Tuesday in U.S. District Court in Baltimore. Though EA routinely buys licenses to use team logos and player names from the NFL and the NFL Players Association, Robert L. Raskopf said the “Flying B” logo was not included in those licenses.

“It was an inadvertent use that had not been approved,” Raskopf said. “If it had come to the NFL’s attention that it was going to be used, it would not have been approved.”

Raskopf, of the New York firm Quinn Emanuel Urquhart & Sullivan LLP, added that EA had since installed a “patch” for the game that would automatically cover the logo whenever a user logged on to the company’s online system for updates.

Messages left with representatives from EA were not returned by press time Tuesday.

Senior Judge Marvin J. Garbis, who has been presiding over Bouchat’s litigation for more than a decade, wore a necktie adorned with the Flying B logo during Tuesday’s hearing. He did not indicate when he will decide whether EA can be added to the underlying litigation, which deals with the use of the Flying B in highlight films from the team’s 1996, 1997 and 1998 seasons. The defendants’ attorneys still have 10 days to respond to the motion to add EA.

Garbis suggested that a separate lawsuit against EA might be more effective, because the Flying B logo was integral to the commercial appeal of the “retro” feature.

“It’s a different question, because EA is deliberately selling the nostalgia,” he said.

Garbis ruled against Bouchat’s claims over the films in 2008, but a federal appeals court reinstated part of the suit last year.

The Ravens stopped using the logo in 1998 after a federal jury found that Bouchat has a copyright on it. However, he has been denied compensation for its use.

Revived on appeal

Bouchat, a security guard and amateur artist, designed the Flying B logo in December 1995, about eight months before the Ravens’ inaugural season. He submitted it by fax and, in exchange, requested a letter of recognition and an autographed helmet.

The team copied his work and used it as its official logo for three years, leading Bouchat to sue for copyright infringement.

While Bouchat proved ownership, he lost on the question of damages. In 2002, a jury awarded him nothing after the Ravens’ attorneys argued that people bought the merchandise for the team, not the logo.

A separate suit to collect royalties from several hundred NFL licensees who sold products featuring the logo also proved unsuccessful.

In February 2008, Bouchat filed suit over the highlight films. Garbis ruled against him that November, finding the logo’s appearance in highlight films historical rather than commercial.

On appeal, though, the 4th U.S. Circuit Court of Appeals disagreed and sent the case back to Garbis to determine whether to grant Bouchat’s request for an injunction against further sale of the films.

Garbis did not make a decision on the injunction request Tuesday. He told Schulman that it seemed “kind of extreme” to stop the sales of any NFL films that include the logo, noting that the bulk of the films were other people’s work and creative effort, not Bouchat’s.

“The focus of the picture is not to show the logo,” he said. “It’s to show Ray Lewis.”

On the other hand, Garbis told Raskopf that given the 4th Circuit’s decision, the defense’s position that Bouchat was entitled to no compensation for the films was “not sensible.”

“What is your justification for saying that your client can take his property, use it, and just continue to take his property?” Garbis asked.

Raskopf repeatedly referred back to the prior litigation, saying the logo was worth “zero. That’s the number.”

Schulman said granting the injunction would let the free market decide what the logo was worth because the NFL would be forced to decide what it is willing to pay to continue selling the videos that display it.