991617OR.P

Filed: December 28, 2000
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-1617
FREDERICK E. BOUCHAT,
Plaintiff-Appellee,
versus
BALTIMORE RAVENS, INCORPORATED;
NATIONAL FOOTBALL LEAGUE
PROPERTIES, INCORPORATED,
Defendants-Appellants.
O R D E R
We have considered the petition for rehearing in this case,
filed by Baltimore Ravens, Inc., et al., and the response of
Bouchat.
Upon a request for a poll of the court, Judges Wilkinson,
Niemeyer, Michael, Motz and King voted to grant rehearing en
banc. Judges Widener, Wilkins, Luttig and Traxler voted to deny
rehearing en banc.*
Fewer than a majority of the circuit judges who are in
regular active service having voted for rehearing en banc, it is
accordingly ADJUDGED and ORDERED that the petition for rehearing
en banc shall be, and it hereby is, denied.

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The panel considered the petition for rehearing and is of
opinion it is without merit.
It is accordingly ADJUDGED and ORDERED that the petition for
rehearing shall be, and it hereby is, denied.
It is FURTHER ORDERED that the opinion in this case shall
be, and it hereby is, amended by adding thereto Footnote AI in
the slip opinion, page 11, following the word “drawing,” the last
word of Part II of the opinion. Footnote AI is attached hereto
and made a part hereof.
It is FURTHER ORDERED that the slip opinion shall be, and it
hereby is, further amended by the addition of Footnote 10
following the word “him” in the third line from the bottom of
page 23 of the slip opinion, which Footnote 10 is attached hereto
and made a part hereof.
With the concurrence of Judge J. H. Michael. Judge King
dissents. He would grant rehearing and require judgment to be
entered for the defendants, for the reasons expressed in his
dissenting opinion.
/s/ H. E. Widener, Jr.
For the Court
*Judge Williams being disqualified, did not participate in the
decision in this case.

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Footnote AI
Plaintiff’s Accused
Drawing Work
A copy of the plaintiff’s shield logo and the accused work
of the NFL Properties is shown above. There is no dispute as to
the similarity of the works, not only because the similarity is
facially indisputable, but the defendants’ expert witness
testified, and the plaintiff’s expert agreed, that the designs
are so similar that they could not have been created
independently from one another. The dissent notes that “it is
just as likely that Bouchat copied the Ravens logo as vice
versa.” Infra, note 10. The jury decided this issue of fact
after considering such evidence as: the testimony from 19
identification witnesses for the plaintiff that they had seen the
plaintiff’s shield drawing in late 1995 (two of whom had received
copies of the shield drawing as Christmas presents in December,
1995); the March 28, 1996 offer from Mr. Moag to forward
Bouchat’s drawings to Mr. Modell; the forwarding by Mr. Modell to
NFL Properties of unsolicited sketches on at least two occasions
in the relevant time period; Bouchat’s April 1 or 2, 1996 fax of
his shield drawing to Moag; the defendants’ inability to present
convincing evidence of any preliminary sketches or drawings
before April 2, 1996 by NFL Properties of the Ravens shield logo;
the June 6, 1996 unveiling of the Ravens shield logo; and the
instant recognition by Bouchat and others of the Ravens logo as a
copy of Bouchat’s work.
The dissent states that there is evidence counter to the
above, but such a conflict in evidence presents the classic jury
issue, and the jury’s resolution of that issue was for the
plaintiff.

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Footnote 10
The panel majority has affixed to its opinion Bouchat’s
shield drawing and the Ravens logo, apparently to illustrate
their “striking similarity” to each other. It strikes me that
these drawings better illustrate the point made in the Keats’
hypothetical. In fact, it is just as likely that Bouchat copied
the Ravens’ logo as vice versa. It bears repeating, see supra
note 1, that Bouchat did not copyright his shield drawing until
nearly two months after the Ravens unveiled their logo.

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