Wednesday, October 17, 2007, 10:57 PM

Fourth Circuit Issues Important Copyright, Claim Preclusion Case

Today the Fourth Circuit closed the final chapter on the Bouchat litigation, the copyright infringement saga arising out of the design and use of the Baltimore Ravens' logo. Bouchat v. Bon-Bon Dep't Stores, Inc.

The prior round of infringement litigation was brought against the Baltimore Ravens football franchise and the NFL. In that round, Bouchat prevailed on liability for infringement, but didn't recover damages. This round of litigation was brought against several hundred downstream licensees that used the infringing logo in various endeavors.

In a significant application of the doctrine of claim preclusion which is sure to be cited many times, the Fourth Circuit held that the doctrine prevents Bouchat from obtaining actual damages from the licensees, since in the prior case against the team and NFL he had not recovered actual damages. The Court also held that Bouchat's failure to register his copyright before infringement began rendered him ineligible for statutory damages. What makes that ruling significant is that the downstream licensees' infringement began after the copyright registration; the Fourth Circuit relied on the fact that the Baltimore Ravens and NFL began their infringement a month before the registration, and the Court used that date as the commencement date with respect to the downstream licensees.

Judge Niemeyer wrote a provocative concurring opinion discussing the problems inherent in applying the Copyright Act in the case when multiple infringements by multiple parties arise from a single work. For example, must a copyright owner join all related infringers? He predicted these issues will arise with increasing frequency in an age of advanced technology for copying and transmitting data. He called on Congress to consider the matter and develop a more workable balance

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