With a stack of video games on his desk, Howard J. Schulman of Schulman & Kaufman LLC is about to embark on a discovery process that will make him the envy of thousands of teenage boys.
Schulman is representing the designer of the Baltimore Ravens’ original “Flying B” logo, Frederick E. Bouchat, in Bouchat’s quest to get compensation for use of the logo, now in its 14th year of litigation. On Friday, Bouchat filed his fourth copyright infringement suit, this time against Electronic Arts Inc., the maker of the Madden NFL video game franchise.
Bouchat’s past suits have taken on the Ravens, the NFL and merchandisers. Now Schulman and his staff will be going through hours of Madden gameplay looking for Bouchat’s logo, which Schulman has already found in “retro” feature of the Madden NFL 11 version.
“It looks like David versus Goliath has turned into the 30 Years War,” Schulman said Wednesday.
In an email, EA Sports Communications Director Rob Semsey said the company does not comment on pending litigation.
Schulman had filed a motion last month in U.S. District Court in Baltimore to add EA to an already-pending suit against the NFL for selling highlight films that feature the Ravens’ logo.
But in a hearing Oct. 4, Senior Judge Marvin J. Garbis suggested that the logo’s appearance in Madden might be a separate issue because “EA is deliberately selling the nostalgia.”
That spurred Schulman to file a separate suit Friday. The new suit also names the NFL, saying the league licensed EA to use the logo and then received royalties for the license.
According to gaming websites, EA purchased the exclusive rights to use the NFL’s teams, stadiums and players in its games in 2004. At the time, it was a five-year contract. EA then reportedly signed an extension in 2008, purchasing the exclusive rights through 2013.
But in last week’s hearing, NFL attorney Robert Lloyd Raskopf of the New York firm Quinn Emanuel Urquhart & Sullivan LLP said those licensing agreements did not include the “Flying B” logo and that EA had used the logo without the NFL’s knowledge. Raskopf said the NFL provided EA with a book full of approved logos when EA bought the license, and the “Flying B” was not in the book.
“Once in a while, something falls through the cracks,” Raskopf said at the hearing, noting that EA had since installed a “patch” that would remove the logo from Madden NFL 11.
With the help of his colleague Marie J. Tchoulakian, Schulman has gained access to an Xbox and Sony Playstation and has begun examining other versions of Madden to see if they, too, include the logo.
On Tuesday, Garbis denied Bouchat’s motion to add a claim for royalties from the sales of the NFL highlight films to his existing lawsuit. The judge wrote that “presumably, Plaintiff is free to file a new lawsuit” that would include those royalties.
Schulman said that, given the statute of limitations, if he filed a lawsuit today the royalties could only come from sales of the highlight reels within the last three years. Given that the Ravens stopped using the logo after 1998, those sales might not amount to much, but Schulman said he’d be looking into it, and a fifth suit could be in the works.
“We are a bit disappointed because it means we have to go file another lawsuit as opposed to handling this all within one consolidated framework,” Schulman said. “But we’ll proceed with a separate lawsuit as necessary.”