Bouchat v. Baltimore Ravens , 346 F.3d 514 ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FREDERICK E. BOUCHAT, 
Plaintiff-Appellant,
v.
BALTIMORE RAVENS FOOTBALL CLUB,
INCORPORATED, a/k/a Baltimore
Ravens, Incorporated; NATIONAL
FOOTBALL LEAGUE PROPERTIES,  No. 02-1999
INCORPORATED,
Defendants-Appellees.
v.
JONATHAN MORGAN,
Movant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-97-1470-MJG)
Argued: June 4, 2003
Decided: October 8, 2003
Before WIDENER, WILKINSON, and KING, Circuit Judges.
Affirmed by published opinion. Judge King wrote the majority opin-
ion, in which Judge Wilkinson joined. Judge Widener wrote a dissent-
ing opinion.
2 BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB
COUNSEL
ARGUED: Howard J. Schulman, SCHULMAN & KAUFMAN,
L.L.C., Baltimore, Maryland, for Appellant. Robert Lloyd Raskopf,
WHITE & CASE, L.L.P., New York, New York, for Appellees. ON
BRIEF: Marc E. Ackerman, WHITE & CASE, L.L.P., New York,
New York; George Beall, HOGAN & HARTSON, L.L.P., Baltimore,
Maryland, for Appellees.
OPINION
KING, Circuit Judge:
This appeal arises from the damages phase of a protracted copy-
right dispute involving the Baltimore Ravens football team. Frederick
Bouchat, the holder of the infringed copyright, raises several chal-
lenges to the district court’s conduct of proceedings that culminated
in a jury verdict finding him entitled to no portion of the infringers’
profits. In particular, Bouchat asserts that the court erroneously failed
to accord him the benefit of a statutory presumption that an infring-
er’s revenues are entirely attributable to the infringement. For the rea-
sons explained below, we affirm.
I.
On November 6, 1995, the National Football League ("NFL")
announced that one of its teams, the Cleveland Browns, would shortly
be moving to Baltimore. The team was to leave its entire Browns
identity in Cleveland, and thus would need a new name and logo
when it moved to its new Maryland home. Bouchat, a Baltimore
security guard and amateur artist, became interested in the new team,
and he began drawing logo designs based on the various names that
the team was considering, including the name "Ravens." On or about
December 5, 1995, Bouchat created a drawing of a winged shield (the
"Shield Drawing") as a "Ravens" logo.
In March of 1996, the Baltimore team adopted the name "Ravens."
In early April, Bouchat sent the Shield Drawing via fax to the Mary-
BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB 3
land Stadium Authority. Beside the Shield Drawing, Bouchat penned
a note asking the Chairman of the Authority to send the sketch to the
Ravens’ president. Bouchat also requested that if the Ravens used the
Shield Drawing, they send him a letter of recognition and an auto-
graphed helmet.
In a jury trial on the issue of liability, Bouchat’s Shield Drawing
was found to have been mistakenly used by National Football League
Properties, Inc. ("NFLP") in NFLP’s production of the Ravens’ new
logo, the "Flying B."1 The Ravens had no knowledge that the NFLP
had infringed anyone’s work and assumed that the Flying B was an
original work owned by NFLP. The Ravens used the Flying B as their
primary identifying symbol, and the logo appeared in every aspect of
the Ravens’ activities, including uniforms, stationery, tickets, banners,
on-field insignia, and merchandise.
II.
On May 8, 1997, Bouchat filed suit in the District of Maryland,
alleging that the Ravens and NFLP (collectively, the "Defendants")
had infringed his copyright on the Shield Drawing and on several
other drawings, and seeking ten million dollars in damages. The court
bifurcated the case and first tried the liability issues. On November
3, 1998, the jury found that Bouchat had proven infringement of the
Shield Drawing. After the court certified the liability verdict for inter-
locutory appeal, a divided panel of this Court affirmed the finding of
liability. Bouchat v. Baltimore Ravens, Inc., 228 F.3d 489 (4th Cir.
2000). We denied rehearing en banc, Bouchat v. Baltimore Ravens,
Inc., 241 F.3d 350 (4th Cir. 2001), the Supreme Court denied certio-
rari, Baltimore Ravens, Inc. v. Bouchat, 532 U.S. 1038 (2001), and
the matter was returned to the district court for trial of the damages
issue.
1
NFLP is the Ravens’ licensing agent: it grants third parties the right
to use the logos and trade/service marks of the various NFL teams in
connection with a variety of products and services. In this capacity,
NFLP both helped to develop the Ravens’ new Flying B logo, and sold
to third parties the right to incorporate the Flying B in a wide range of
merchandise, including apparel, books, athletic bags, and video tapes.
4 BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB
Bouchat sought damages from the Ravens and NFLP pursuant to
17 U.S.C. § 504(a)(1), which renders an infringer liable for "the copy-
right owner’s actual damages and any additional profits of the
infringer, as provided by [17 U.S.C. § 504(b)]."2 Section 504(b), in
turn, entitles the copyright owner to recover both "the actual damages
suffered by him or her as a result of the infringement, and any profits
of the infringer that are attributable to the infringement and are not
taken into account in computing the actual damages." 17 U.S.C.
§ 504(b). Because Bouchat made no claim for actual damages, the
sole question presented for resolution in the damages trial was the
amount, if any, of the Defendants’ profits that was attributable to the
infringement.
In his complaint, Bouchat contended that some portion of essen-
tially all of the Defendants’ revenues was attributable to the infring-
ing use of Bouchat’s artwork.3 To satisfy his initial burden under
§ 504(b), Bouchat presented evidence of the gross receipts from all
NFLP and Ravens activities. The district court, however, awarded
partial summary judgment to the Defendants with respect to all reve-
nues derived from sources other than (1) sales of merchandise bearing
the Flying B logo, and (2) royalties obtained from licensees who sold
such merchandise (collectively, the "Merchandise Revenues").
Bouchat v. Baltimore Ravens, Inc., 215 F. Supp. 2d 611, 619, 621 (D.
Md. 2002). The court reasoned that "[i]f the use of the Flying B logo
to designate the Ravens could not reasonably be found to have
affected the amount of revenue obtained from an activity, the revenue
from that activity could not reasonably be found attributable to the
infringement." Id. at 617-18. Concluding that only the Merchandise
2
Bouchat was not entitled to pursue statutory damages because the
infringement was of an unpublished work and preceded copyright regis-
tration. 17 U.S.C. § 412(1).
3
Bouchat conceded in the district court that there are a few categories
of the Defendants’ revenues that could not, in any part, be attributable
to the infringement. So, for example, Bouchat did not seek to recover
interest earned on Ravens’ checking accounts, even though the checks
bore the Flying B logo; nor did he seek to recover the revenues obtained
from stadium rentals, even though the Flying B logo was prominently
featured on the playing field. See Bouchat v. Baltimore Ravens, Inc., 215
F. Supp. 2d 611, 616 (D. Md. 2002).
BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB 5
Revenues could reasonably be found to have been affected by the
Defendants’ unlawful use of the Flying B, the court excluded, as a
matter of law, the remainder of the Defendants’ revenues (collec-
tively, the "Non-Merchandise Revenues") from the pool of income
that the jury could consider in awarding § 504 damages.4
At the close of discovery, the district court further narrowed the
scope of the Defendants’ revenues from which the jury would be per-
mitted to award § 504 damages, when it excluded certain portions of
the Merchandise Revenues. Bouchat v. Baltimore Ravens, Inc., Order,
No. 97-CV-1470 (D. Md. July 9, 2002) (the "July Order"). Specifi-
cally, the court awarded partial summary judgment to the Defendants
as to Bouchat’s claims for profits from "minimum guarantee shortfalls,"5
"free merchandise,"6 trading cards, video games, and game programs
(collectively, the "Excluded Merchandise Revenues"). Id. at 1-2.7
4
The Non-Merchandise Revenues would include, for instance, reve-
nues from the sale of game tickets, stadium parking, food, drinks (with
the exception of those sold in special logo-bearing cups), broadcast
rights, and sponsorships.
5
Under NFLP’s retail licensing agreements, licensed vendors of offi-
cial, logo-bearing merchandise are required to pay a certain sum each
year, regardless of whether any sales of licensed products actually occur.
Thus, if actual sales fall short of what would be required to generate the
guaranteed minimum royalty, a vendor must tender payment in the
amount needed to make up the difference. This sum is a "minimum guar-
antee shortfall" payment. See J.A. 1317-26.
6
Under NFLP’s retail licensing agreements, a licensed vendor of offi-
cial, logo-bearing merchandise must provide to NFLP, at no cost, a cer-
tain quantity of its licensed products each year. These products are
referred to as "free merchandise." See J.A. 1317-26.
7
The July Order also awarded summary judgment to the Defendants
with respect to revenues received from "[o]ther" sources, including a
"Nike settlement." July Order at 2 & n.3. The record, however, has not
enabled us to divine the nature of these "other sources"; and in pressing
his appeal, Bouchat has likewise shed no light on the matter. Accord-
ingly, we must deem waived any objection that Bouchat might have had
to the award of summary judgment with respect to these revenues. See
generally In re Apex Express Corp., 190 F.3d 624, 630 n.5 (4th Cir.
1999) (noting that issue not argued in appellant’s brief is deemed waived
on appeal).
6 BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB
Though it recognized that the Defendants "ha[ve] the burden of
proof," the court nonetheless ruled that, with respect to the minimum
guarantee shortfalls and the free merchandise, there could be no ratio-
nal connection between the particular source of revenue and the act
of infringement; and that, with respect to the trading cards, video
games, and game program sales, the Defendants had produced unre-
butted evidence establishing that the revenues received from those
sources were not attributable to the infringement. Id. at 2 & nn.1-6.
Like the court’s earlier summary judgment award, the July Order had
the effect of narrowing the scope of the Defendants’ revenues that the
jury could consider in deciding the amount of § 504 damages, if any,
that Bouchat would recover. Both the Non-Merchandise Revenues
and a substantial portion of the Merchandise Revenues having thus
been excluded, only those revenues derived from the sale of t-shirts,
caps, souvenir cups, and other items bearing the Flying B logo (col-
lectively, the "Non-Excluded Merchandise Revenues") would go to
the jury for a finding on attributability.8
The damages trial was conducted over a period of six days, from
July 17 to 24, 2002. On July 23, 2002, at the close of the evidence,
the jury was asked to decide whether the Defendants had proven, by
a preponderance of the evidence, that the Non-Excluded Merchandise
Revenues were attributable entirely to factors other than the Defen-
dants’ infringement of Bouchat’s copyright. If the jury found that they
were not, then it was charged to decide the percentage of the Non-
8
By the July Order, the court also granted in part several of the Defen-
dants’ motions to exclude evidence. Specifically, the court ruled that
Bouchat would not be permitted to raise accounting issues regarding the
calculation of the Defendants’ gross revenues. Nor would he be allowed
to introduce evidence pertaining to Defendants’ revenues earned outside
of the relevant time frame. The court forbad references to the Defen-
dants’ finances unrelated to the use of the Flying B logo, and it limited
the issues at trial to a determination of the extent to which the Non-
Excluded Merchandise Revenues were attributable to the appearance of
the infringed artwork. Id. at 3-6.
Also prior to trial, the court ruled that there was no genuine issue of
fact between the parties either as to the amount of the Defendants’ gross
revenues, or as to the expenses that would need to be deducted to com-
pute total profits. J.A. 525-26.
BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB 7
Excluded Merchandise Revenues attributable to factors other than the
infringement.
After a full day of deliberations, the jury answered the first ques-
tion in the affirmative, thereby denying Bouchat any monetary recov-
ery. On July 26, 2002, the court entered judgment on the jury verdict.
Bouchat filed a timely notice of appeal, and we possess jurisdiction
pursuant to 28 U.S.C. § 1291.
III.
A.
Bouchat’s primary contention on appeal is that the district court
erred in awarding partial summary judgment to the Defendants with
respect to certain portions of the Defendants’ revenues. In particular,
Bouchat asserts that the court failed to give him the benefit of the
§ 504 statutory presumption that an infringer’s revenues are entirely
attributable to the infringement. That presumption, he maintains,
creates a question of material fact that cannot be resolved on sum-
mary judgment. Thus, he asserts, whether any portion of an infring-
er’s revenues are attributable to some source other than the
infringement is a question that can be resolved only by a jury. As
explained below, we disagree.
1.
We review de novo a district court’s award of summary judgment.
See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1127-28 (4th Cir.
1987). Under the Federal Rules of Civil Procedure, summary judg-
ment shall be awarded "if the pleadings, depositions, answers to inter-
rogatories, and admissions on file, together with the affidavits, . . .
show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law." Fed.
R. Civ. P. 56(c). As the Supreme Court has observed, "this standard
provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no
genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986) (emphasis in original).
8 BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB
2.
Bouchat seeks to recover damages pursuant to 17 U.S.C. § 504(b)
for the Defendants’ infringement of his copyright. Section 504(b)
entitles a successful copyright plaintiff to recover "any profits of the
infringer that are attributable to the infringement." 17 U.S.C.
§ 504(b). The statute goes on to specify that,
[i]n establishing the infringer’s profits, the copyright owner
is required to present proof only of the infringer’s gross rev-
enue, and the infringer is required to prove his or her
deductible expenses and the elements of profit attributable
to factors other than the copyrighted work.
Id. Thus, § 504(b) creates an initial presumption that the infringer’s
"profits . . . attributable to the infringement" are equal to the infring-
er’s gross revenue. See Konor Enters., Inc. v. Eagle Publ’ns, Inc., 878
F.2d 138, 140 (4th Cir. 1989). Once the copyright owner has estab-
lished the amount of the infringer’s gross revenues, the burden shifts
to the infringer to prove either that part or all of those revenues are
"deductible expenses" (i.e., are not profits), or that they are "attribut-
able to factors other than the copyrighted work." Id. Although
§ 504(b) places the burden on the infringer to demonstrate that certain
portions of its revenues were due to factors other than the infringe-
ment, the infringer need not prove these amounts with mathematical
precision. See Cream Records, Inc. v. Jos. Schlitz Brewing Co., 754
F.2d 826, 828-29 (9th Cir. 1985); cf. Sheldon v. Metro-Goldwyn Pic-
tures Corp., 309 U.S. 390, 408 (1940) (holding that there need only
be "reasonable approximation" of recoverable profits).
3.
Despite the existence of § 504(b)’s burden-shifting provision, sum-
mary judgment in favor of an infringer with respect to some portion
of the infringer’s gross revenues may, in the proper circumstances, be
appropriate. Though our Court has not spoken directly on this point,
several of our sister circuits have awarded partial summary judgment
to infringers, excluding as a matter of law certain portions of an
infringer’s revenues from the jury’s § 504(b) attributability inquiry.
Furthermore, an award of partial summary judgment to an infringer
BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB 9
with respect to particular categories of revenue comports, in the
proper circumstances, with the basic tenets of our Rule 56 jurispru-
dence.
a.
We begin by looking to the decisions of our sister circuits. The
§ 504(b) cases in which partial summary judgment in favor of an
infringer with respect to part, or all, of the infringer’s revenues has
been found proper, fall roughly into two categories: (1) those in which
there existed no conceivable connection between the infringement and
a given revenue stream; and (2) those in which, despite the existence
of a conceivable link, the plaintiff failed to offer anything more than
mere speculation as to the existence of a causal connection between
the infringement and the claimed revenues.
The Second Circuit recently affirmed an award of summary judg-
ment to the infringer in a § 504(b) case that presented the first of these
scenarios, concluding that there existed no conceivable connection
between the infringement and a substantial portion of the revenues
claimed by the plaintiff. See On Davis v. The Gap, Inc., 246 F.3d 152(2d Cir. 2001). In On Davis, the plaintiff (Davis) had submitted evi-
dence that, during and shortly after the Gap undertook an eyewear
advertising campaign that infringed his copyright, the Gap’s corporate
parent realized net sales of $1.668 billion, an increase of $146 million
over the revenues earned in the same period of the preceding year. Id.
at 159. The On Davis court acknowledged that "a highly literal inter-
pretation of the statute would favor" the plaintiff, since the statute
requires that the copyright owner "present proof only of the infring-
er’s gross revenue." Id. at 160 (quoting 17 U.S.C. § 504(b)). The
court, however, held that "the term ‘gross revenue’ under [§ 504(b)]
means gross revenue reasonably related to the infringement, not unre-
lated revenues." Id. Because the gross revenue of $1.668 billion that
Davis submitted was derived in part from sales "that were in no way
promoted by the [infringing] advertisement," the court affirmed the
summary judgment award in favor of the Gap. Id. at 161.
The Ninth Circuit faced the second of the § 504(b) summary judg-
ment scenarios in Mackie v. Rieser, 296 F.3d 909 (9th Cir. 2002). In
Mackie, the plaintiff failed to offer anything more than mere specula-
10 BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB
tion as to the existence of a causal link between the infringement and
the claimed revenues, and the court upheld an award of summary
judgment in favor of the defendant infringer. Id. at 916. The dispute
in Mackie arose out of the Seattle Symphony Orchestra’s inclusion in
its advertising brochure of an image of one of Mackie’s sculptures.
Id. at 912. The Symphony admitted that it had infringed Mackie’s
copyright, and Mackie asserted a claim against the Symphony for
both actual damages and profits. Id. at 912-13. It was, in the abstract,
at least conceivable that the infringement had caused — and would
continue, in future seasons, to cause — the Symphony to generate
more revenues than it otherwise would: after all, the Symphony pre-
sumably incorporated the image in its brochure with the ultimate goal
of increasing its profits; and perhaps, unlikely as it may be, a recipient
of the brochure was so enamored of the infringing image that he
decided to become a patron of the Symphony. See id. at 916. How-
ever, as the Symphony noted when it moved for summary judgment,
Mackie offered no evidence in support of his theory that the infringe-
ment had in fact boosted the Symphony’s revenues. Id. at 913. When
Mackie failed to respond to the summary judgment motion with even
a single piece of evidence suggesting the existence of an actual causal
connection, the trial court granted the Symphony’s summary judg-
ment motion. Id.In affirming, the Ninth Circuit reasoned that, "to survive summary
judgment, a copyright infringement plaintiff seeking to recover indi-
rect profits damages [i.e., damages for profits that have an attenuated
connection to the infringement] under 17 U.S.C. § 504(b) must prof-
fer some evidence to create a triable issue regarding whether the
infringement at least partially caused the profits that the infringer gen-
erated as the result of the infringement." Id. at 911. "Because Mackie
[had] failed to adduce any non-speculative evidence that would even
suggest a link between the infringement and the Symphony’s suppos-
edly enhanced revenues," summary judgment in favor of the Sym-
phony was appropriate. Id.; see id. at 916; see also Univ. of Colo.
Found., Inc. v. Am. Cyanamid Co., 196 F.3d 1366, 1375 (Fed. Cir.
1999) (holding that plaintiff has "the burden" to demonstrate some
nexus between infringement and profits before apportionment can
occur); Taylor v. Meirick, 712 F.2d 1112, 1122 (7th Cir. 1983) (not-
ing that "[i]f General Motors were to steal your copyright and put it
in a sales brochure, you could not just put a copy of General Motors’
BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB 11
corporate income tax return in the record and rest your case for an
award of infringer’s profits").
b.
The On Davis and Mackie decisions, upholding awards of sum-
mary judgment to § 504(b) defendants, comport fully with our sum-
mary judgment jurisprudence. Summary judgment is not solely a
defensive mechanism: Rule 56 expressly contemplates the availability
of summary judgment to a claimant. See Fed. R. Civ. P. 56(a). That
a movant bears the ultimate burden of proof or persuasion — as does
an infringer in the § 504(b) context — is no obstacle to a summary
judgment award in favor of that party, so long as the requirements of
Rule 56 are otherwise satisfied. Cf. Meyer v. Worsley Cos., Inc., 881
F. Supp. 1014, 1021 (E.D.N.C. 1994) (awarding summary judgment
to defendant who, under relevant statutory scheme, bore ultimate bur-
den of proof, when defendant made requisite Rule 56 showing and
plaintiff failed to respond with demonstration of existence of genuine
dispute of material fact). Regardless of whether he may ultimately be
responsible for proof and persuasion, the party seeking summary
judgment bears an initial burden of demonstrating the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the moving party has met that burden, the non-
moving party must come forward and demonstrate that such an issue
does, in fact, exist. See Matsushita Elec. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986).
A party opposing a properly supported motion for summary judg-
ment "may not rest upon the mere allegations or denials of [his]
pleadings," but rather must "set forth specific facts showing that there
is a genuine issue for trial." Fed. R. Civ. P. 56(e); see Matsushita
Elec. Indus. Co., 475 U.S. at 586-87 (holding that, once motion for
summary judgment is properly made and supported, opposing party
bears burden of showing, by means of affidavits or other verified evi-
dence, that genuine dispute of material fact exists); Cray Communica-
tions, Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 393-94 (4th
Cir. 1994); see also Anderson, 477 U.S. at 248 (holding that dispute
regarding material fact is "genuine" if "the evidence is such that a rea-
sonable jury could return a verdict for the nonmoving party"). Fur-
thermore, neither "[u]nsupported speculation," Felty, 818 F.2d at12 BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB
1128, nor evidence that is "merely colorable" or "not significantly
probative," Anderson, 477 U.S. at 249, will suffice to defeat a motion
for summary judgment; rather, if the adverse party fails to bring forth
facts showing that "reasonable minds could differ" on a material
point, id. at 250, then, regardless of "[a]ny proof or evidentiary
requirements imposed by the substantive law," id. at 248, "summary
judgment, if appropriate, shall be entered," Fed. R. Civ. P. 56(e).
These general principles only further highlight the propriety of an
award of summary judgment under circumstances such as those pre-
sented in On Davis and Mackie. Despite § 504(b)’s presumption that
the recoverable "profits . . . attributable to the infringement" are equal
to the infringer’s gross revenues, the statute does not exempt the
copyright plaintiff from the requirement of Rule 56 that he respond
to a properly supported motion for summary judgment by "set[ting]
forth specific facts showing that there is a genuine issue for trial."
Fed. R. Civ. P. 56(e). Should the plaintiff fail so to respond —
whether that failure is due to the absence of any conceivable connec-
tion between the infringement and the claimed revenues, or instead
simply due to the plaintiff’s inability to muster nonspeculative evi-
dence in support of the alleged causal link — then summary judgment
may properly be awarded to the infringer with respect to part or all
of the contested revenues.
c.
In sum, we conclude that the Defendants could properly be
awarded summary judgment with respect to any given revenue stream
if either (1) there exists no conceivable connection between the
infringement and those revenues; or (2) despite the existence of a con-
ceivable connection, Bouchat offered only speculation as to the exis-
tence of a causal link between the infringement and the revenues. It
is to these inquiries that we turn next.
4.
The Defendants derive revenues from six major sources: (1) spon-
sorships; (2) broadcast and other media licenses; (3) sale of tickets;
(4) miscellaneous business activities, which appear to include provi-
sion of game-day stadium parking; (5) sale of official team merchan-
BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB 13
dise; and (6) royalties from licensees who sell official team
merchandise. See Bouchat, 215 F. Supp. 2d at 615. The first four of
these sources we characterize as the "Non-Merchandise Revenues,"
while the fifth and sixth are the "Merchandise Revenues." To briefly
review the history relevant to this appeal: Early in the case, the court
awarded partial summary judgment to the Defendants with respect to
the Non-Merchandise Revenues, leaving the Merchandise Revenues
for later consideration. Id. at 619, 621. Subsequently, the court
awarded partial summary judgment to the Defendants with respect to
certain portions of the Merchandise Revenues, to wit, the revenue
received from: "minimum guarantee shortfalls"; "free merchandise";
trading cards; video games; and game programs. July Order at 1-2.9
Bouchat contends that, because of the Defendants’ widespread use
of the Flying B as the primary logo — and as an integral marketing
tool — for the Baltimore Ravens, some portion of the revenues that
the Defendants earned from both the Non-Merchandise Revenues and
the Excluded Merchandise Revenues is attributable to the Defendants’
infringement of his copyright. When the district court awarded sum-
mary judgment to the Defendants as to large segments of their reve-
nues, however, it denied Bouchat the opportunity to prove this
9
It should be noted that, while our precedents appear not to address
head-on the propriety of a § 504(b) partial summary judgment like this
one, we have made clear that it is appropriate to parse revenue streams
as the district court did here. In Walker v. Forbes, Inc., 28 F.3d 409 (4th
Cir. 1994), we held that a trial court was within its discretion in permit-
ting an infringer (Forbes) to introduce evidence at trial that tended to
show that the use of a particular photograph in a special edition of
Forbes magazine bore no causal connection to the advertising and sub-
scription revenues that that edition generated. Id. at 411-12. The evi-
dence indicated that the vast majority of Forbes’s advertising and
subscription profits were derived not from the contents of any one edi-
tion, but rather from the reputation of the magazine. Id. The plaintiff con-
tended that this sort of evidence allowed the jury to impermissibly
"sever" whole categories of revenue in determining the proper amount of
damages to award. We rejected this contention, though, acknowledging
that it is proper to parse an infringer’s various revenue streams and assess
them categorically, rather than to consider all revenues together. Id.Thus, the district court did not err insofar as, at the summary judgment
stage, it addressed the Defendants’ revenues category-by-category.
14 BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB
contention to the jury. Despite the fact that § 504(b) places on the
infringer the burden of proving that revenues are not attributable to
the infringement, summary judgment was appropriate with respect to
both the Non-Merchandise Revenues and the Excluded Merchandise
Revenues.
As detailed above, we analyze the excluded revenue streams in two
steps. We first consider whether any of the Non-Merchandise Reve-
nues and the Excluded Merchandise Revenues lacked a conceivable
connection to the infringement. If so, summary judgment in favor of
the Defendants with respect to those revenues was proper. Turning
then to the remaining excluded revenues, we inquire whether, despite
the existence of a conceivable connection between those revenues and
the infringement, Bouchat offered only speculative evidence of such
a causal link in response to a properly supported motion for summary
judgment. If so, then summary judgment in favor of the Defendants
was appropriate with respect to these revenues as well.
a.
Of all the excluded revenues, only the revenues from minimum
guarantee shortfalls and free merchandise lack all conceivable con-
nection to the Defendants’ infringement of Bouchat’s copyright.
Because no rational trier of fact could find that these two sub-
categories of the Excluded Merchandise Revenues were affected by
the Defendants’ adoption of the infringing Flying B logo, the court
properly removed them from the pool of Defendants’ revenues sub-
mitted to the jury for consideration under § 504(b).
The levels of each licensee’s minimum guarantee and free mer-
chandise obligation were established, ex ante, by the terms of the
licensee’s contract with NFLP; neither figure could fluctuate in
response to consumer behavior. As a consequence, the amount of rev-
enue that the Defendants received in the form of minimum guarantee
shortfalls and free merchandise was necessarily independent of any
reaction that any individual might have had to the Flying B logo.
Whereas it is at least hypothetically possible (albeit highly unlikely)
that an individual became so enamored of the infringing aspects of the
Flying B logo that he was thus inspired to purchase tickets for the
Ravens’ games, to pay for parking, to buy non-logo-bearing conces-
BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB 15
sions, and thus to boost the Defendants’ revenues from these sources,
a similar scenario cannot be conjured with respect to revenues whose
levels were fixed and immutable before licensees had an opportunity
to stock their shelves with logo-bearing goods. No rational trier of
fact could find that the infringing Flying B logo enabled the defen-
dants to generate more income from these two sources than they
would otherwise have done. Because no portion of the Defendants’
gross revenues from minimum guarantee shortfalls and free merchan-
dise could be attributable to the infringement of Bouchat’s copyright,
the court did not err in awarding summary judgment to the Defen-
dants with respect to these two sub-categories of the Excluded Mer-
chandise Revenues.
b.
Having concluded that summary judgment in favor of the Defen-
dants was proper with respect to both the minimum guarantee short-
falls and the free merchandise, we turn now to the Non-Merchandise
Revenues and the remaining sub-categories of the Excluded Merchan-
dise Revenues (i.e., the revenues from trading cards, video games,
and game programs). Our inquiry on this point is whether, despite the
existence of a conceivable connection between the infringement and
the level of revenue that the Defendants earned from these sources,
the court was correct in excluding them through summary judgment.
Because Bouchat offered only speculative evidence of a causal link
between the infringement and the level of the revenues that the
Defendants earned from these sources, and because the Defendants’
request for summary judgment was supported by unrebutted evidence
demonstrating that these revenues were not, in fact, in any way attrib-
utable to the infringement, there was no issue of material fact for con-
sideration by the jury. As a result, the court did not err in awarding
summary judgment to the Defendants with respect to these remaining
categories of revenue.
When they moved for summary judgment, the Defendants success-
fully carried their initial burden of demonstrating the absence of a
genuine issue of material fact. See Celotex Corp., 477 U.S. at 323. In
support of their initial motion for summary judgment, the Defendants
proffered affidavits showing that Non-Merchandise Revenues are
driven by business and consumer interest in NFL football, and are in
16 BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB
no way responsive to logo design. See J.A. 73-104. In support of their
subsequent summary judgment motion, the Defendants again prof-
fered numerous affidavits, this time showing that sales of trading
cards, video games, and game programs are driven by consumer inter-
est in NFL football, and likewise are in no way responsive to logo
design. See J.A. 371-88; see also July Order at 2 nn.4-6. The support-
ing affidavits established beyond reasonable debate that neither any
portion of the Defendants’ Non-Merchandise Revenues, nor any por-
tion of their revenues from trading cards, video games, or game pro-
grams, was attributable to the Defendants’ selection and use of the
infringing Flying B rather than some other logo.
Having met their initial burden, the Defendants successfully shifted
the onus onto Bouchat to come forward and demonstrate that such an
issue does, in fact, exist. See Matsushita Elec. Indus. Co., 475 U.S.
at 586-87. A party opposing a properly supported motion for sum-
mary judgment "may not rest upon the mere allegations or denials of
[his] pleadings," but rather must "set forth specific facts showing that
there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see Mat-
sushita Elec. Indus. Co., 475 U.S. at 586-87 (holding that, once
motion for summary judgment is properly made and supported,
opposing party has burden of showing, by means of affidavits or other
verified evidence, that there exists genuine dispute of material fact);
see also Mackie, 296 F.3d at 911 (holding that "to survive summary
judgment, a copyright infringement plaintiff seeking to recover [atten-
uated] profits damages under 17 U.S.C. § 504(b) must proffer some
evidence to create a triable issue regarding whether the infringement
at least partially caused the profits that the infringer generated as the
result of the infringement," and that, should plaintiff "fail[ ] to adduce
any non-speculative evidence that would even suggest a link between
the infringement and the [defendant’s] supposedly enhanced reve-
nues," then summary judgment in favor of defendant with respect to
those revenues is proper). Bouchat, however, produced no specific
facts showing that there was a genuine issue for trial; in fact, he
declined to respond to the summary judgment motions with any evi-
dence at all, resting instead on his initial, and sole, evidentiary prof-
fer: the total receipts generated by all NFLP and Ravens activities.10
10
That Bouchat failed to respond is, indeed, unsurprising, in light of the
fact that the affidavits merely confirm what ordinary experience would
BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB 17
Because Bouchat failed to offer any nonspeculative evidence demon-
strating the existence of a genuine dispute of material fact, the court
appropriately awarded summary judgment to the Defendants on the
ground that the Non-Merchandise Revenues and the revenues from
trading cards, video games, and game programs could not reasonably
be found attributable to the infringement.
In sum, the Defendants established in their motions for summary
judgment that there existed no causal link between their adoption of
the infringing Flying B logo and either the Defendants’ Non-
Merchandise Revenues or their revenues from trading cards, video
games, or game programs. In response, Bouchat rested on his specula-
tion that somehow, somewhere, some part of the Defendants’ reve-
nues from these sources was influenced by the fact that the
Defendants selected the Flying B rather than some other logo. How-
ever, because "[u]nsupported speculation is not sufficient to defeat a
summary judgment motion," Felty, 818 F.2d at 1128, the court prop-
erly awarded summary judgment to the Defendants both with respect
to the Non-Merchandise Revenues and with respect to the revenues
from sales of trading cards, video games, and game programs.
c.
It is the "affirmative obligation of the trial judge to prevent factu-
ally unsupported claims and defenses from proceeding to trial."
Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (internal quota-
tion marks omitted); see Celotex Corp., 477 U.S. at 323-24 ("One of
the principal purposes of the summary judgment rule is to isolate and
dispose of factually unsupported claims or defenses, and we think it
should be interpreted in a way that allows it to accomplish this pur-
pose."). Once the Defendants had carried their initial burden of dem-
otherwise seem to render apparent: that no reasonable trier of fact could
find that the sale of a ticket, or of a sponsorship, or of broadcast rights
was in any way a consequence of the team’s adoption of one logo design
rather than another. Similarly, it defies credulity that a consumer would
purchase NFL trading cards in order to catch a glimpse of the Flying B
logo on a featured player’s helmet; or video games, so as to see the logo
on the simulated Ravens players; or a game program, simply because its
artwork incorporated the Flying B. See J.A. 475-80.
18 BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB
onstrating the absence of any genuine issue of material fact regarding
the attributability of the contested revenues, Bouchat could survive
the motion for summary judgment only by adducing specific, non-
speculative evidence supporting the existence of a link between the
infringement and the Defendants’ supposedly enhanced revenues.
Because Bouchat failed to make such a showing, the court properly
awarded summary judgment to the Defendants.
B.
Finally, Bouchat contends that the district court, in its instructions
to the jury, failed to accord him the full benefit of the statutory pre-
sumption contained in § 504(b).11 Specifically, Bouchat maintains that
the court abused its discretion by failing to make clear to the jury that
the Ravens bore the burden of proof in the damages trial. To the con-
trary, the court made it eminently clear in its instructions that the Rav-
ens were obliged to shoulder the burden of proof. See, e.g., J.A. 563-
65 (stating to jury, at the outset of trial, that "[i]n this case, the burden
of proof is on the defendants to prove the extent to which the revenue
derived from the sale of these products is attributable to factors other
than the art work of the Flying B logo. . . . Question one [of the Ver-
dict form] asks, have defendants proven by a preponderance of the
evidence that income derived by defendants from the sale of products
bearing the Flying B logo was attributable completely to factors other
than the art work of the Flying B logo."(emphasis added)); J.A. 903
(instructing jury immediately prior to deliberations that "[t]he case is
about whether on the evidence the defendants . . . have carried their
burden of proof . . . . On those questions the defendants have the bur-
den of proof by a preponderance of the evidence." (emphasis added)).
This burden of proof point was further emphasized by the first
11
We review a trial court’s jury instructions for abuse of discretion. See
Walker v. Forbes, Inc., 28 F.3d 409, 414 (4th Cir. 1994). It is well settled
that a "district judge has broad discretion in framing his jury instruc-
tions." Merlo v. United Way of America, 43 F.3d 96, 103 (4th Cir. 1994).
Thus, instructions do not furnish grounds for reversal of an adverse ver-
dict so long as, taken as a whole, they "adequately state the controlling
law." Eberhardt v. Integrated Design & Construction Incorporated, 167
F.3d 861, 869 (4th Cir. 1999).
BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB 19
question on the Verdict form tendered to the jury by the court, reading
"Have the Defendants proven by a preponderance of the evidence that
income derived by the Defendants from the sale of products bearing
the Flying B logo was attributable completely to factors other than the
art work of the Flying B logo?" J.A. 564-65 (emphasis added).
Viewed in context, the instructions plainly informed the jury of the
controlling legal principles; the court therefore did not abuse its discre-
tion.12
IV.
For the foregoing reasons, the judgment of the district court is
affirmed.
AFFIRMED
WIDENER, Circuit Judge, dissenting:
I respectfully dissent. I am of opinion that the district court erred
by refusing to instruct the jury that the defendants’ profits are deemed
attributable to the alleged copyright infringement unless the defen-
dants prove otherwise.
I first recount some of the relevant facts from our earlier opinion
in this case. In 1995, Frederick Bouchat was a security guard at an
office building. As word spread that a National Football League team
was returning to Baltimore, Bouchat drew team designs and logos. He
showed the designs to visitors of the building and sometimes gave
them away as gifts. Bouchat v. Baltimore Ravens, Inc., 228 F.3d 489,
491-92 (4th Cir. 2000).
After seeing some of Bouchat’s designs, a state official who
worked in the building arranged a meeting between Bouchat and John
12
Bouchat also raises several additional challenges to the district
court’s handling of the damages trial, focusing in particular on other
aspects of the instructions and on the court’s evidentiary rulings. On
careful review, we are unable to discern any abuse of discretion on these
issues, and our affirmance of the court on these contentions does not
warrant further discussion.
20 BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB
Moag, the chairman of the Maryland Stadium Authority. Moag is
credited with bringing the Ravens team to Baltimore. After Bouchat
described his drawings, Moag told Bouchat to send him the drawings
so that he could pass them along to the Ravens for consideration.
Bouchat got permission from his supervisor to use the office fax
machine and faxed his drawing to the Maryland Stadium Authority.
Within a day after Bouchat sent his fax, Moag met with National
Football League Properties officials to discuss the design of the new
Ravens logo. The Ravens unveiled their new logo several months
later. Bouchat and his co-workers immediately recognized the new
logo as Bouchat’s work. Bouchat successfully sued the defendants for
copyright infringement. Bouchat, 228 F.3d at 491-92. The district
court bifurcated that first trial. After a trial on the issue of liability,
the jury found that the defendants infringed Bouchat’s copyright and
this court affirmed. Bouchat v. Baltimore Ravens, Inc., 241 F.3d 350(4th Cir. 2001). Bouchat then sought damages under 17 U.S.C.
§ 504(b) in a separate jury trial that is the subject of this appeal.1
At the close of evidence in the damages trial, Bouchat asked the
district court to give the jury instruction approved by this court in
Walker v. Forbes, 28 F.3d 409 (4th Cir. 1994). In Walker, we
affirmed the district court’s instruction on the award of profits in a
copyright infringement case.2 Bouchat asked for the instruction by
name and also read the relevant language into the record.
1
As the majority points out, Bouchat could not elect to receive statu-
tory damages because he had not registered his copyright at the time of
the infringement.
The majority also notes that Bouchat did not claim any actual dam-
ages. This is understandable. Bouchat drew his proposed logos for the
Ravens in his spare time and often gave them away as gifts. He submit-
ted his design to Moag only after Moag suggested it. Even then, he asked
in return only for "a letter of recognition" and an autographed helmet, "if
the team wants to." Thus, it is likely that Bouchat’s actual damages, if
any, were nominal. Regardless of his actual damages, however, Bouchat
is entitled to defendants’ profits attributable to the infringement because
the award of profits is intended to "prevent the infringer from unfairly
benefitting from a wrongful act" and not to compensate the copyright
owner. H.R. Rep. No. 94-1476, at 161 (1976), reprinted in 1976
U.S.C.C.A.N. 5659, 5777.
2
This court not only affirmed the use of the instruction, but also
praised it, noting that "the district court’s rich and detailed instructions
BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB 21
The district court declined to give the Walker instruction. Instead,
the court read from the jury verdict form. Although the district court
explained that "the defendants have the burden of proof by a prepon-
derance of the evidence," the court never instructed the jury that they
must presume all profits are attributable to the infringement unless the
defendants prove otherwise.
I agree with the majority’s conclusion that the district court cor-
rectly instructed the jury on the burden of proof. Under Walker, how-
ever, merely stating that the defendant bears the burden of proof is not
enough. The Walker instruction also informs the jury that profits
should be deemed attributable to the alleged infringement unless the
defendant proves otherwise. Walker, 28 F.3d 414. Indeed, our opinion
emphasized the following portion of the district court’s instruction:
"amounts or elements of profits should be deemed attributable to the
alleged infringement unless [the defendant] proves by a preponder-
ance of the evidence that they are not." Walker, 28 F.3d at 414(emphasis in original). The importance of this portion of the instruc-
tion is evident from our analysis following the emphasized language:
This instruction correctly stated the law concerning the
shifted burden of proof that the defendant bears to show the
portion of revenues and profits that are not attributable to
the infringement, and, in the emphasized language,
explained the impact of this shifted burden upon the appor-
tionment calculation.
Walker, 28 F.3d at 414 (emphasis added). The emphasized language
in Walker is the basic thought around which the decision is based, and
its conscious omission here is, I think, reversible error.
Later cases in this circuit recognize that § 504(b) creates a pre-
sumption in favor of the copyright holder on the issue of profits. In
Nelson-Salabes, Inc. v. Morningside Development, 284 F.3d 505 (4th
did an excellent job of explaining to the jury its task in determining the
correct apportionment of profit attributable to the infringement, faithfully
explaining the rules and procedures set out in the statute." Walker, 28
F.3d at 416.
22 BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB
Cir. 2002), this court acknowledged that "under § 504(b), all gross
revenue is presumed to be profit ‘attributable to the infringement’
unless the infringer is able to demonstrate otherwise." Nelson-
Salabes, 284 F.3d at 512 n.9.
Other courts similarly acknowledge that § 504(b) creates a pre-
sumption in favor of the copyright owner. In Data General Corp. v.
Grumman Systems Support Corp., 36 F.3d 1147, 1173 (1st Cir. 1994),
the First Circuit held that "the plaintiff must meet only a minimal bur-
den of proof in order to trigger a rebuttable presumption that the
defendant’s revenues are entirely attributable to the infringement."
The rebuttable presumption language in Data General has been used
by a number of district courts. See Andreas v. Volkswagen of Amer-
ica, Inc., 172 F. Supp.2d 1168, 1170 (N.D. Iowa 2001); Bruce v.
Weekly World News, Inc., 150 F. Supp.2d 313, 315 (D. Mass. 2001),
rev’d on other grounds, 310 F.3d 25 (1st Cir. 2002); Rainey v. Wayne
State University, 26 F. Supp.2d 963, 971-72 (E.D. Mich. 1998).
In addition to refusing to give the Walker instruction, the district
court limited its instructions on the award of profits under § 504(b)
to an explanation of the special verdict form. The court read each
question from the verdict form and then gave a brief explanation of
what the question meant. The first question asked "have the defen-
dants proven by a preponderance of the evidence that income derived
by the defendants from the sale of products bearing the Flying B logo
was attributable completely to factors other than the artwork of the
Flying B logo." The jury answered "yes" to question one and ended
their deliberations.
The verdict form and accompanying instructions used in this case
are troubling. Special verdict forms "should be resorted to with dis-
crimination and foresight" Morris v. Pennsylvania R. Co., 187 F.2d
837, 841 (2d Cir. 1951). Indeed, Justice Black and Justice Douglas
wrote that special verdict forms can be, as here, "used to impair or
wholly take away the power of a jury to render a general verdict."
Statement of Mr. Justice Black and Mr. Justice Douglas on the Rules
of Civil Procedure and the Proposed Amendments, 31 F.R.D. 617,
618 (1963).
BOUCHAT v. BALTIMORE RAVENS FOOTBALL CLUB 23
In this case, the lack of a clear, or any, instruction relating to the
presumption of award of profits, together with the limited scope of the
verdict form questions, can only have discouraged the jury from
awarding damages to the plaintiff, even if the facts and the law sup-
ported such an award. This result runs counter to the fundamental pur-
poses of trial by jury.3 See 9A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 2503 (2d ed. 1994).
In sum, given our holding in Walker and the reasoning of later
cases, I am of opinion that the jury should have been instructed that
defendants’ profits are deemed attributable to the infringement unless
the defendants prove otherwise by a preponderance of the evidence.
Accordingly, I would hold that the district court’s instructions to the
jury, taken as a whole, did not adequately state the controlling law.
In my opinion, the failure of the district court, upon request, to give
the instruction on the presumption of damages for the plaintiff, which
was literally approved in Walker, was an abuse of discretion even if
subject to discretionary consideration. It cut the heart out of the plain-
tiff’s case. For that reason, I would reverse and remand for a new
trial.
3
Some of the greatest legal thinkers in American jurisprudence have
written on the importance of leaving juries free to decide cases so that
they may apply not only the law, but also their own sense of justice. See
e.g., Oliver Wendell Holmes, Law in Science and Science in Law, in Col-
lected Legal Papers 237-238 (1920); Roscoe Pound, Law in Books and
Law in Action, 44 Am. L. Rev. 12, 18-19 (1910); John H. Wigmore, A
Program for the Trial of Jury Trial, 12 J. Am. Jud. Soc. 166, 170 (1929);
Roger J. Traynor, Fact Skepticism and the Judicial Process, 106 U. Pa.
L. Rev. 635, 640 (1958); Charles E. Wyzanski, Jr., A Trial Judge’s Free-
dom and Responsibility, 65 Harv. L. Rev. 1281, 1286 (1952).