                                             Filed:   January 17, 2001

                   UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                              No. 99-1617
                           (CA-97-1470-MJG)



Frederick E. Bouchat,

                                                 Plaintiff - Appellee,

          versus


Baltimore Ravens, Inc., et al.,

                                              Defendants - Appellants.



                              O R D E R



     The court amends its published order filed December 28, 2000,

and further amends its opinion filed October 3, 2000, as follows:

     Footnote AI is deleted from page 11 of the opinion and moved

to page 6, second full paragraph, line 14, after the word “favor.”

                                          For the Court - By Direction




                                          /s/ Patricia S. Connor
                                                   Clerk
                                             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.
     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 6, following the word “favor,” 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.
Footnote AI




                       [PICTURES NOT AVAILABLE]



              Plaintiff’s Drawing      The Accused 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.
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.
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FREDERICK E. BOUCHAT,
Plaintiff-Appellee,

v.
                                                                No. 99-1617
BALTIMORE RAVENS, INCORPORATED;
NATIONAL FOOTBALL LEAGUE
PROPERTIES, INCORPORATED,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-97-1470-MJG)

Argued: March 3, 2000

Decided: October 3, 2000

Before WIDENER and KING, Circuit Judges, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Senior Judge Michael wrote the opin-
ion, in which Judge Widener joined. Judge King wrote a dissenting
opinion.

_________________________________________________________________

COUNSEL

ARGUED: Robert Lloyd Raskopf, WHITE & CASE, L.L.P., New
York, New York, for Appellants. Howard J. Schulman, SCHULMAN
& KAUFMAN, L.L.C., Baltimore, Maryland, for Appellee. ON
BRIEF: John Paul Reiner, Marc E. Ackerman, WHITE & CASE,
L.L.P., New York, New York; George Beall, HOGAN & HARTSON,
L.L.P., Baltimore, Maryland, for Appellants. Robert J. Kasunic, Ger-
mantown, Maryland, for Appellee.

_________________________________________________________________

OPINION

MICHAEL, Senior District Judge:

Frederick E. Bouchat (the "plaintiff-appellee") filed this action,
seeking $10,000,000 in damages, in the United States District Court
for the District of Maryland, alleging that the Baltimore Ravens, Inc.
and National Football League Properties, Inc. (the"defendants-
appellants") had infringed his copyright rights in three different draw-
ings consisting entirely of his original work, including a shield draw-
ing created by Bouchat in late 1995 when developing his "shield
logo" for the new National Football League team-- the Baltimore
Ravens. Bouchat holds a copyright on his shield drawing and claims
that the defendants' designers copied protected elements of that draw-
ing. The defendants claim that they developed the Baltimore Ravens'
official shield logo independently. The case was tried before a jury
over nearly five weeks in October and November 1998. The jury
returned a verdict in favor of Bouchat. The defendants filed a motion
for judgment as a matter of law notwithstanding the verdict or, in the
alternative, for a new trial as to the third drawing, contending --
among other things -- that the plaintiff failed to prove that the defen-
dants had access to Bouchat's drawing. The district court, by order,
denied defendants' motion in February of 1999. In April 1999, how-
ever, the District Court certified several questions to this court which
form the basis of this interlocutory appeal. Based upon the reasoning
below, this court affirms the decision of the district court.

I.

Frederick Bouchat is an amateur artist. He has a ninth grade educa-
tion, and now works as a front entrance security guard at the State of
Maryland Office building on St. Paul Street in Baltimore. Bouchat

                  2
often showed his artwork to people passing through the building's
main entrance.

As news of an NFL team for Baltimore spread in 1995, Bouchat
created drawings and designs for the team based on his favorite possi-
ble team name -- the Ravens. Bouchat created a helmet design and
affixed his creation to a miniature football helmet. Bouchat gave the
design and helmet to Eugene Conti, a state official who worked in the
St. Paul Street office building. Conti kept the helmet displayed in his
office. Bouchat showed other team drawings to employees of the
building, and gave two drawings away as holiday gifts in December
of 1995.

Conti asked a colleague to arrange a meeting between Bouchat (an
enthusiastic Baltimore fan) and John Moag, chairman of the Maryland
Stadium Authority (the man who brought the team to Baltimore) in
order to include a story about Bouchat in the employee news letter.
On March 28, 1996, Bouchat was taken to meet Moag at Moag's law
office on Pratt Street. The Ravens, and David Modell (the team's
owner) occupied the same office suite in the Pratt Street building as
a temporary space at this time.

At the meeting, photos were taken and Moag told Bouchat that the
team was going to be named the Ravens. When Bouchat described his
drawings, Moag told Bouchat to send his drawings along, and Moag
would give them to the Ravens for consideration. The next day,
Bouchat got permission from his supervisor to use the office fax
machine in order to send his drawings to Moag at the Maryland Sta-
dium Authority (MSA). Jan Drabeck, Bouchat's immediate supervi-
sor, showed Bouchat how to use the fax machine.

On April 1 or 2, 1996, Bouchat faxed his drawings to the MSA. He
received a fax confirmation but did not retain the printed confirmation
receipt. One of the drawings Bouchat faxed to the MSA was his
shield drawing.

On April 2, 1996, Modell met with the NFL Properties Design
Director to discuss the development of a Ravens logo. Thereafter,
Modell communicated with the design team concerning the logo proj-

                  3
ect. The Ravens unveiled their new logo in June of 1996. The new
Ravens logo was a Raven holding a shield.

Bouchat and several of his co-workers immediately recognized the
new logo as Bouchat's work. Bouchat contacted a lawyer, and in
August of 1996 he obtained copyright registration for his shield draw-
ing. In May of 1997 Bouchat filed this lawsuit against the Ravens and
NFL Properties for infringing his copyright on the design at issue. In
November of 1998, the jury returned a verdict in favor of the plaintiff,
but only as to his shield drawing.1 1 Defendants filed a motion for judg-
ment as a matter of law which the district court denied. The district
court then certified the following questions for interlocutory appeal:
(1) Was the plaintiff's proof of a reasonable possibility of access
legally insufficient? (2) If so, will the Fourth Circuit adopt the "strik-
ingly similar" doctrine inferring access, as expressed in Gaste v.
Kaiserman, 863 F.2d 1061, 1968 (2d Cir. 1988)? (3) Should the copy-
right infringement claim be dismissed because the plaintiff failed to
note the derivative nature of the shield drawing on the application for
copyright, where defendants have not proven fraud or a purposeful
failure to advise the copyright office of facts that might have caused
rejection of the application? (4) Did the court improperly coerce the
jury to reach its verdict? These four questions are the basis for the
defendants' interlocutory appeal.

II.

To prove copyright infringement, a plaintiff must show first that he
owned the copyright to the work that was allegedly copied, and sec-
ond, that the defendant copied protected elements of the work. See
Towler v. Sayles, 76 F.3d 579, 581 (4th Cir. 1996) (citing Feist Publi-
cations, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361
(1991)). Where direct evidence of copying is lacking, plaintiff may
prove copying by circumstantial evidence in the form of proof that the
alleged infringer had access to the work and that the supposed copy
is substantially similar to the author's original work. See Towler, 76
F.3d at 581-82.
_________________________________________________________________
1 Bouchat claimed copyright infringement as to three drawings, but
only won a favorable verdict as to the shield drawing. Only the verdict
as to the shield drawing is challenged on appeal.

                   4
Defendants contend that Bouchat did not establish access. To prove
access, Bouchat was required to show that the NFL designers, the
alleged infringers, had an opportunity to view Bouchat's drawing. See
id. at 582. The jury was entitled to infer that the NFL designers had
access if a third party intermediary (Modell) with a close relationship
to the alleged infringers (the NFL designers) had access. See id. at
583. This court, however, has rejected mere "speculative reasoning"
as a basis for proving access, especially when intermediaries are
involved. Id. Reasoning that amounts to nothing more than a "tortu-
ous chain of hypothetical transmittals" is insufficient to infer access.
Id. at 583 (quoting Meta-Film Assoc., Inc. v. MCA, Inc., 586 F. Supp.
1346, 1355 (C.D. Cal. 1984)).

Defendants, in denying actual receipt of Bouchat's faxed drawings,
claim that Bouchat's proof amounts only to a "tortuous chain of hypo-
thetical transmittals" and therefore is legally insufficient to prove
access. Defendants' argument is not persuasive. In Towler, the plain-
tiff relied on the theoretical possibility that agents to whom she had
sent her screenplay "could have sent the work to" the alleged
infringer. Id. There was no evidence that the agents had sent the work
to the defendant, only the plaintiff's suggestion that such a transmittal
was hypothetically possible. This, the Fourth Circuit concluded, was
not adequate proof of access. See id.

Bouchat offered evidence that his shield drawing was transmitted
first to Moag, who shared an office with Modell (who had a close
relationship with the alleged infringers on the design project).
Bouchat testified that Moag offered to forward his (Bouchat's) draw-
ings to the Ravens and that Bouchat sent the fax of the drawings to
MSA, addressed to Moag. The jury was entitled to credit that testi-
mony. Evidence was also introduced that the regular practice at the
MSA was to forward faxes for Moag to his Pratt Street office. The
jury was thus entitled to conclude that the faxed drawing reached
Moag at the Pratt Street office. Defendants admit that Modell and
other Ravens staff shared office space with Moag in the Pratt Street
building, and that Modell's own office was within"earshot" of
Moag's office. By proving that the drawings were transmitted to
Moag, and that Modell shared the same office space with Moag,
Bouchat proved that Modell had "access" to Bouchat's drawing. The
chain of transmittals is far more than hypothetical-- it is based on

                  5
the testimony of Bouchat and the evidence regarding standard office
routines at the MSA. See Fed. R. Evid. 406.

The defendants successfully argue that Bouchat did not prove that
Modell actually saw Bouchat's drawings. However, Bouchat was not
required to prove that Modell in fact saw the drawings and copied
them. Rather, Bouchat was merely required to prove that Modell had
access to the drawings by showing Modell had the opportunity to
view them. See Towler, 76 F.3d at 582. Bouchat clearly presented suf-
ficient evidence to sustain that burden. Having concluded that Modell
had access to the drawings, the jury was able to combine that conclu-
sion with the substantial similarity between the Raven's logo and
Bouchat's drawing to find, ultimately, that the Ravens copied
Bouchat's copyrighted work.

The district court, in its memorandum opinion, speculates that the
fax addressed to Moag might have been misdelivered to Modell him-
self, since Modell's name appeared in the message written on the fax
and since the fax featured a large raven, concerning which Modell
would obviously be the interested party. Bouchat's evidence is suffi-
cient to demonstrate access even if we do not posit any fortuitous mis-
delivery of the fax. A copyright infringement plaintiff need not prove
that the infringer actually saw the work in question; it is enough to
prove that the infringer (or his intermediary) had the mere opportunity
to see the work and that the subsequent material produced is substan-
tially similar to the work. See id. Adequate evidence of the infringer's
or the intermediary's opportunity to see the work exists and therefore
Bouchat's proof of access is legally sufficient to sustain the jury's
verdict in his favor.AI

III.

The second question certified on interlocutory appeal is condi-
tional, requesting a response if the answer to the first certified ques-
tion was that the plaintiff's evidence of access was insufficient. This
court remains firm in its holding that the plaintiff's evidence of access
is legally sufficient to sustain the jury's verdict. However, this court
also finds it proper to briefly address the question of whether this cir-
cuit will adopt the "strikingly similar" doctrine inferring access, as
expressed in Gaste v. Kaiserman, 863 F.2d 1061, 1968 (2d Cir. 1988).

                  6
AI
                [PICTURES NOT AVAILABLE]

        Plaintiff’s Drawing             The Accused 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 iden-
tification 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 draw-
ings to Mr. Modell; the forwarding by Mr. Modell to NFL Prop-
erties 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.
The strikingly similar doctrine, as expressed in Gaste, permits an
inference of access in cases where the two works in question are so
similar as to create a high probability of copying and negate the rea-
sonable possibility of independent creation. See id. at 1067-68. The
Seventh Circuit has also adopted this doctrine in agreement with
Gaste, holding that "a similarity that is so close as to be highly
unlikely to have been an accident of independent creation is evidence
of access." Ty, Inc. v. GMA Accessories, Inc. , 132 F.3d 1167, 1170
(7th Cir. 1997). The Fifth Circuit, on the other hand, has held that
where there is striking similarity that precludes the possibility of inde-
pendent creation, "`copying' may be proved without a showing of
access." Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111,
113 (5th Cir. 1978) (citations omitted). Unlike the Fifth Circuit, this
court does not favor the wholesale abandonment of the access require-
ment in the face of a striking similarity. Rather, like the Second and
Seventh Circuits, this court recognizes that striking similarity is one
way to demonstrate access. Access remains an indispensable part of
a copyright infringement claim.

As made clear by the Second Circuit in Gaste, "Though striking
similarity alone can raise an inference of copying, that inference must
be reasonable in light of all the evidence." 863 F.2d at 1068; see also
Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 1984) ("no matter how
great the similarity between the two works, it is not their similarity
per se which establishes access"). Furthermore, the Second Circuit
went on to explain that "[a] plaintiff has not proved striking similarity
sufficient to sustain a finding of copying if the evidence as a whole
does not preclude any reasonable possibility of independent creation."
Id. (citations omitted). It is clear that a showing of striking similarity
does not per se relieve the plaintiff of his burden of establishing
access. However, striking similarity is circumstantial evidence of
copying, thereby supporting an inference of access. What is important
is that the access prong remains intact, but the level of similarity
between the contested works can be used as evidence of access. Any
finding of access must be reasonable in light of all of the facts of a
particular case. This interpretation is consistent with that of the Sec-
ond and Seventh Circuits. There is no binding precedent in the Fourth
Circuit that addresses the substance of the Gaste opinion.2   2
_________________________________________________________________
2 Prior to the instant opinion, this court has only cited Gaste in one pub-
lished opinion. In Towler v. Sayles, this court mentions Gaste but

                   7
As discussed in Section II of this opinion, the plaintiff in this mat-
ter made a reasonable showing of access, independent from the strik-
ing similarity of the works. However, the striking similarity of the
works was a proper factor for the jury to consider, in conjunction with
all other evidence, to determine whether the plaintiff had proven
copying by circumstantial evidence.

IV.

Defendants contend that Bouchat's drawing does not qualify for
copyright protection, because it does not contain sufficiently original
elements. However, the copyright infringement claim should not be
dismissed based on alleged defects in plaintiff's copyright applica-
tion. Defendants' argument on this point must be rejected.

Bouchat's drawing contains several public domain elements which
are not protectable. These elements, however, were selected, coordi-
nated, and arranged in such a way as to render the work original. See
Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340,
345-46, 358 (1991); M. Kramer Manufacturing Co., Inc. v. Andrews,
783 F.2d 421, 438-39 (4th Cir. 1986). The drawing, therefore, is enti-
tled to copyright protection.

The district court recognized that Bouchat failed to note the deriva-
tive nature of his authorship in his copyright application, but the court
also found that there is no evidence of any fraudulent or knowing mis-
statement with regard to the application. (JA at 1310.) This court held,
in Service & Training, Inc. v. Date General Corp., 963 F.2d 680, 689
(4th Cir. 1992), that an inadvertent omission will not invalidate a
copyright registration.

Defendants argued below that the alleged flaw in Bouchat's copy-
right application served to divest the district court of subject matter
jurisdiction over the infringement claim. (JA at 1310.) On appeal,
they now argue that the flaw in the application serves to divest
_________________________________________________________________
expressly declined to answer the question as to the requisite proof of
access in the face of striking similarity. See 76 F.3d 579, 584-85 (4th Cir.
1996).

                   8
Bouchat of all copyright protection and thus is fatal to his infringe-
ment claim as a threshold matter. However, the premise on which this
argument is built -- that Bouchat's drawing is not protectable -- is
simply wrong. Neither the fact that Bouchat incorporated public
domain elements in his drawing (the letter "B", a cross, a shield) nor
the fact that he did not expressly indicate on his application that such
elements rendered his authorship of the drawing derivative in nature,
invalidate the protection to which his drawing is otherwise entitled
under his valid copyright registration. See Service & Training, 963
F.2d at 689. Accidental but harmless mistakes in a copyright applica-
tion do not subsequently preclude an infringement action against an
alleged copier.

V.

Although the jury had difficulty in reaching a verdict, and the dis-
trict court judge gave supplemental instructions twice, including an
Allen charge, the court did not improperly coerce the jury to reach its
verdict. Supplemental instruction may not be coercive, and a review-
ing court must consider the totality of the circumstances in deciding
whether the trial court abused its discretion. Bristol Steel & Iron
Works, Inc. v. Bethlehem Steel Corp., 41 F.3d 182, 191 (4th Cir.
1994).

The district court delivered the Allen charge on Friday, October 30,
1998 at 2:10 PM. The jury continued to deliberate until 5 PM that
day, and again on Tuesday, November 3. On Tuesday, the jury sent
a note to the judge, in response to which the court delivered further
supplemental instructions. When the court inquired as to the schedul-
ing preferences of the jurors later that afternoon, they responded at
4:30 PM, indicating that they were making progress. At 5:10 PM the
jury reached its verdict.

The district court specifically told the jurors that it was not suggest-
ing anyone surrender their honest convictions about the case. (JA
1200-1201.) The district court characterized its instructions as "fair
and balanced," (JA 1327), and such a characterization is accurate. The
fact that the jurors were actively encouraged to persist in their effort
to reach consensus does not mean that they were coerced.

                  9
VI.

Based on the foregoing, this court affirms the district court's denial
of the defendants' motion for judgment as a matter of law, and
responds to the question posed in the interlocutory appeal.

AFFIRMED

KING, Circuit Judge, dissenting:

Because the jury's verdict in favor of Bouchat is entirely without
legal or factual support, the district court erred in denying the defen-
dants' renewed motion for judgment as a matter of law. The defen-
dants are entitled to judgment, and therefore I must respectfully
dissent.

I.

We review de novo the district court's denial of the defendants'
Rule 50(b) motion for judgment as a matter of law, viewing the evi-
dence in the light most favorable to Bouchat, and giving him the ben-
efit of all reasonable inferences. See Austin v. Paramount Parks, Inc.,
195 F.3d 715, 727 (4th Cir. 1999). If there is evidence upon which
a reasonable jury could have found in Bouchat's favor, we are obliged
to affirm the jury's verdict. Duke v. Uniroyal, Inc., 928 F.2d 1413,
1417 (4th Cir. 1991).

Although appellate courts are "compelled to accord the utmost
respect to jury verdicts and tread gingerly in reviewing them, we are
not a rubber stamp convened merely to endorse the conclusions of the
jury, but rather have a duty to reverse the jury verdicts if the evidence
cannot support it[.]" Price v. City of Charlotte, 93 F.3d 1241, 1250
(4th Cir. 1996) (internal citations omitted). Judgment as a matter of
law is appropriate when "there is no legally sufficient evidentiary
basis" to support the jury's verdict. Fed. R. Civ. P. 50(a)(1).

II.

To prove copyright infringement, a plaintiff must present evidence

                  10
establishing two elements by a preponderance of the evidence: "(1)
ownership of a valid copyright, and (2) copying of constituent ele-
ments of the work that are original." Feist Publications, Inc. v. Rural
Tel. Serv. Co., 499 U.S. 340, 361 (1991). I agree with the majority
that Bouchat has satisfied the first element of a copyright infringe-
ment action. Ante at 8-9. That is, Bouchat does possess a valid certifi-
cate of copyright registration for his shield drawing from the United
States Copyright Office -- dated almost two months after the Ravens
publicly unveiled their shield logo.1  1 See J.A. 27.

With regard to the second element, however, I simply cannot agree
with the majority's conclusion that this evidentiary record establishes
that the defendants copied Bouchat's shield drawing. Proof of copy-
ing may be accomplished by either direct evidence or circumstantial
evidence. Keeler Brass Co. v. Continental Brass Co., 862 F.2d 1063,
1064 (4th Cir. 1988). In cases where direct evidence is lacking, a
plaintiff may prove copying by presenting circumstantial evidence
that: (i) the alleged infringer had access to the plaintiff's work; and
(ii) the infringer's work is "substantially similar" to the plaintiff's
original. Towler v. Sayles, 76 F.3d 579, 581-82 (4th Cir. 1996).

In this case, Bouchat presented no direct evidence that the defen-
dants copied his drawing in creating the Ravens shield logo. Thus,
Bouchat bore the burden of demonstrating through circumstantial evi-
dence that the defendants had access to his work, and that the Ravens
shield logo is "substantially similar" to his original work. As the dis-
trict court recognized, substantial similarities in the two works are
readily apparent. Therefore, the outcome of this proceeding hinges on
a single inquiry: whether Bouchat demonstrated that the defendants
had "access" to his shield drawing.

III.

To prove access, Bouchat was required to show that the defendants
-- specifically the NFLP designers charged with creating the logo for
Baltimore's new professional football franchise-- had a reasonable
_________________________________________________________________
1 Bouchat's copyright registration is dated July 25, 1996. The Ravens
publicly unveiled their new uniforms and insignia, including the shield
logo, on June 6, 1996.

                   11
opportunity to view, and thereby copy, his shield drawing. See ante
at 5 (citation omitted). A "mere possibility" is not enough; rather it
"must be reasonably possible that the paths of the infringer and the
infringed work crossed." Towler, 76 F.3d at 582 (emphasis added)
(citing Moore v. Columbia Pictures Indus., Inc. , 972 F.2d 939, 942
(8th Cir. 1992)). Indeed, as the majority recognizes, speculative rea-
soning that "amounts to nothing more than a `tortuous chain of hypo-
thetical transmittals' is insufficient to infer access." Ante at 5 (citing
Towler, 76 F.3d at 583) (quoting Meta-Film Assocs. v. MCA, Inc., 586
F. Supp. 1346, 1355 (C.D. Cal. 1984)).

Notwithstanding the majority's casting aside of the substance of
Towler, that decision's characterization of"speculative reasoning" is
quite apposite here, because Bouchat's evidence of access constitutes
nothing more than a "tortuous chain of hypothetical transmittals." To
conclude that Bouchat demonstrated "access," the jury necessarily
found that Bouchat's shield drawing travelled the following circuitous
route:

        - the Maryland Stadium Authority ("MSA") actually
        received Bouchat's facsimile transmission (Step 1);

        - MSA then forwarded Bouchat's fax to the Pratt Street
        office of John Moag's law firm (Step 2);

        - David Modell of the Baltimore Ravens (which rented
        office space in the Pratt Street building housing Moag's
        law firm -- but on a different floor than Moag), received
        Bouchat's drawing (Step 3);

        - Modell, or someone else within the Ravens organization,
        forwarded Bouchat's drawing to designers Rhonda Kim
        and Kurt Osaki of the NFLP in New York (Step 4).

Based on the evidence presented at trial, including Bouchat's testi-
mony that he faxed the drawing to MSA and evidence that MSA regu-
larly forwarded certain correspondence to Moag's law office, the
majority finds that Bouchat has met his initial burden in showing that
Steps 1 and 2 may have been reached, and that "[t]he jury was thus

                   12
entitled to conclude that the faxed drawing reached Moag at the Pratt
Street office." Ante at 5.

A.

Given our limited standard of review, I am constrained to agree
with the majority that the jury was entitled to credit Bouchat's testi-
mony that he faxed his shield drawing to MSA's office. However, the
evidence supporting such a finding, consisting solely of Bouchat's
own testimony, is marginal at best.2
                                   2 Bouchat presented no witnesses
who saw him send the fax; he submitted no confirmation sheet verify-
ing that the facsimile transmission was successful; and he failed to
produce any telephone records confirming the transmission. More-
over, the Deputy Director of MSA testified that, following the initia-
tion of this lawsuit, he conducted an investigation to determine
whether MSA had received Bouchat's fax. Based on this investiga-
tion, he concluded that "[e]very member of[MSA] staff said they had
no knowledge of this drawing." J.A. 322.

Nevertheless, I agree with the majority that a reasonable jury could
have concluded that Step 1 was adequately proved, and that Bouchat
faxed the shield drawing to MSA. However, this is merely the begin-
ning, rather than the end, of our inquiry; Bouchat was required to
prove much more.

B.

With regard to Step 2, I cannot agree that the jury, on this evidence,
could find the fax reached Moag at the Pratt Street office of his law
firm, Patton Boggs. In support of its conclusion otherwise, the major-
ity relies solely on evidence "that the regular practice at MSA was to
forward faxes for Moag to his Pratt Street office." Ante at 5. From this
evidence, the jury apparently inferred that Moag had received
Bouchat's shield drawing prior to creation of the Ravens shield logo.
_________________________________________________________________
2 Even the jury was not fully convinced by Bouchat, as evidenced by
their simultaneous and inconsistent verdict that he failed to prove that he
had faxed two other drawings along with the shield drawing. J.A. 1237,
1239-40.

                  13
However, "an inference must be a logical and reasonable deduction
from the facts proved. It may be unreasonable if it is at war with
uncontradicted or unimpeached facts." Selle v. Gibb, 567 F. Supp.
1173, 1182 (N.D. Ill. 1983), aff'd, 741 F.2d 896 (7th Cir. 1984) (inter-
nal quotations and citation omitted).3  3 Thus, if a plaintiff's claim is
based upon inferences, they must be logical and reasonable, and not
directly contradicted by otherwise undisputed facts. Only then are the
inferences permissible.

In this case, the evidence does not permit the inference that Moag
received Bouchat's shield drawing. First, beyond the preliminary
inference that the fax was received by MSA, Bouchat offered no
direct evidence that MSA thereafter forwarded the shield drawing to
Moag. Nevertheless, the majority approves of the additional inference
-- based exclusively on MSA's general policy of forwarding corre-
_________________________________________________________________
3 An "inference" is a common evidentiary device which allows the trier
of fact to draw "a logical deduction or conclusion from established fact."
United States v. Grow, 394 F.2d 182, 199 (4th Cir. 1968). That is, an
inference permits the jury to find an ultimate fact to have been proven
based upon proof of another fact. The determination of whether an infer-
ence is reasonable "cannot be decided in a vacuum; it must be considered
in light of the competing inferences to the contrary." Sylvia Dev. Corp.
v. Calvert County, Md., 48 F.3d 810, 818 (4th Cir. 1995) (internal cita-
tions omitted).

In Pennsylvania R.R. Co. v. Chamberlain, 288 U.S. 333 (1931), the
Supreme Court concluded that it is "not permissible [to infer the exis-
tence of a particular fact] in the face of the positive and otherwise uncon-
tradicted testimony of unimpeached witnesses consistent with the facts
actually proved, from which testimony it affirmatively appears that the
facts sought to be inferred did not exist." Id. at 341. Similarly, in Ford
Motor Co. v. McDavid, 259 F.2d 261 (4th Cir. 1958), we explored the
jury's ability to draw inferences from established facts, writing:

        [I]t is the province of the jury to resolve conflicting inferences
        from circumstantial evidence. Permissible inferences must still
        be within the range of reasonable probability, however, and it is
        the duty of the court to withdraw the case from the jury when the
        necessary inference is so tenuous that it rests merely upon specu-
        lation and conjecture.

Id. at 266.

                  14
spondence to Moag -- that MSA sent the shield drawing to Moag's
law office. I disagree on this point; the majority's inference-upon-
inference determination that Moag received Bouchat's shield drawing
is much too speculative to support a finding of access. See Selle, 741
F.2d at 902.

Indeed, the only evidence produced at trial on this issue is inconsis-
tent with the jury's inference that the faxed drawing reached Moag.
The office manager at Patton Boggs testified that an investigation of
internal office files did not indicate receipt of any drawings from
Bouchat. Likewise, when Moag was asked whether he recalled
receiving any artistic submissions from Bouchat after their initial
meeting, he replied, "No, I do not. I remember meeting Mr. Bouchat
but I don't remember receiving anything from him." J.A. 966.

Although it is within the province of the jury to evaluate the credi-
bility of these witnesses, the jury cannot:

        arbitrarily discredit a witness and disregard his testimony in
        the absence of any equivocation, confusion, or aberration in
        it. It is not proper to submit uncontradicted testimony to a
        jury for the sole purpose of giving the jury the opportunity
        to nullify it by discrediting the witness, when nothing more
        than mere interest in the case exists upon which to discredit
        such witness.

M.H. Thomas & Co. v. Hawthorne, 245 S.W. 966, 972 (Tex. Civ.
App. 1922) (quoted with approval in Chesapeake & O. Ry. Co. v.
Martin, 283 U.S. 209, 219-20 (1931)). See also Browning v. Crouse,
356 F.2d 178, 180 (10th Cir. 1966); Eaton v. National Broad. Co.,
972 F. Supp. 1019, 1024 (Ed. Va. 1997), aff'd , No. 97-2162, 1998
WL 258381 (4th Cir. May 21, 1998) (per curiam). As the Seventh
Circuit recognized in Selle, "the testimony of credible witnesses con-
cerning a matter within their knowledge cannot be rejected without
some impeachment, contradiction or inconsistency with other evi-
dence on the particular point at issue." 741 F.2d at 903 (citations
omitted).

In the face of the uncontradicted evidence that Bouchat's shield
drawing was not received at Moag's law office, MSA's general prac-

                  15
tice of forwarding correspondence to Moag, standing alone, is simply
insufficient to support a jury finding that the drawing actually reached
Moag's office. In short, the majority's second inference (Step 2) --
that MSA forwarded the drawing to Moag's office-- amounts to
nothing more than "mere speculation, conjecture, or a bare possibility
of access." See Selle, 741 F.2d at 902.

C.

Furthermore, assuming the jury could permissibly find that the
shield drawing reached Moag's office (Step 2), Bouchat's proof of
access is even less convincing in the succeeding two steps. After the
drawing reached Moag's law office, Step 3 in the access analysis is
premised on another inference -- that the fax was then sent to Modell
of the Ravens organization. In this regard, the majority infers access
based on another thin reed -- the mere fact that the Ravens rented
temporary office space from Moag's law firm: "By proving that the
drawings were transmitted to Moag, and that Modell shared the same
office space with Moag, Bouchat proved that Modell had `access' to
Bouchat's drawing." Ante at 5.

Once again, however, Bouchat produced no evidence to corrobo-
rate his contention that Modell received the shield drawing. Instead,
Bouchat asks us to infer -- based on his testimony that he sent a fax
of the drawing to MSA -- that MSA received it; infer further --
based on MSA's policy of forwarding correspondence addressed to
Moag to Moag's law office -- that the drawing was sent to Patton
Boggs; and then infer even further -- based on the fact that the Rav-
ens rented office space from Patton Boggs -- that Modell received
the drawing. While the majority regards an office policy as sufficient
proof that MSA forwarded the fax to Moag, it ignores Moag's per-
sonal policy and practice to the contrary of not forwarding to the Rav-
ens material sent to MSA. This error directly conflicts with both
common sense and numerous authorities to the contrary. Corporate
receipt of the material alleged to be infringed is simply insufficient
proof of access in the face of uncontroverted evidence that corporate
policy was to separate these sorts of submissions from the alleged
infringers. See Grubb v. National Football League Properties, 901 F.
Supp. 36, 39 (D. Mass. 1995); Vantage Point, Inc. v. Parker Bros.,
Inc., 529 F. Supp. 1204 (E.D.N.Y. 1981).

                  16
Furthermore, the evidence at trial is consistent with Moag's policy
of not forwarding material to the Ravens. The undisputed evidence
was that neither Modell nor any other Ravens official ever received
Bouchat's shield drawing. As the district court conceded, "There is no
direct evidence specifically proving that the Shield Drawing fax was
provided to Mr. Modell, and he generally denies any knowledge of
such a fax." J.A. 1313.

There is more. All witnesses from the Ravens organization categor-
ically denied having received or viewed Bouchat's shield drawing
prior to creation of the Ravens shield logo. Modell himself testified
unequivocally that he never received any Bouchat drawings. Like-
wise, David Cope, the Ravens vice-president for marketing (and the
official responsible for handling outside submissions during the
months of March and April 1996), testified that he did not see any
drawings submitted by Bouchat. Although juries are generally entitled
to disbelieve the testimony of any witness, "the testimony of credible
witnesses concerning a matter within their knowledge cannot be
rejected without some impeachment, contradiction or inconsistency
with other evidence on the particular point at issue." Selle, 741 F.2d
at 903 (citations omitted). Again, the inference that Modell received
the shield drawing cannot fairly be characterized as anything other
than "mere speculation, conjecture, or a bare possibility of access."

D.

Nonetheless, even if we also assume that Modell received
Bouchat's shield drawing (Step 3), such a conclusion still leaves the
drawing nearly 200 miles south of the NFLP's New York office. To
establish access, Bouchat bore the additional burden of proving Step
4 -- that Kim and Osaki, the NFLP's creators of the allegedly infring-
ing work, had a reasonable opportunity to view or to copy his shield
drawing. See Towler, 76 F.3d at 582; see also Eaton, 972 F. Supp. at
1024 n.7 (E.D. Va. 1997) ("Proof of access is only probative of copy-
ing to the extent that the alleged copier had access to the protected
work. Thus, it is access by the creators of the allegedly infringing
work that must be shown.").

1.

Significantly, the majority does not discuss whether Kim and Osaki
had a reasonable opportunity to view or copy Bouchat's shield draw-

                  17
ing. The majority's analysis on this point is a single sentence, con-
cluding simply, "The jury was entitled to infer that the NFL designers
had access if a third party intermediary (Modell) with a close relation-
ship to the alleged infringers (the NFL designers) had access." Ante
at 5. Under this so-called "third party intermediary doctrine," courts
may "infer that the alleged infringer had a reasonable possibility of
access if the author sent the copyrighted work to a third party interme-
diary who has a close relationship with the infringer." Towler, 76 F.3d
at 583.

The problem with this point is simple -- the inference is rebutted
by uncontradicted testimony. Inferring access under this doctrine, like
any inference, must be a reasonable deduction from established fact.
See Grow, 394 F.2d at 199. The defendants introduced undisputed
evidence inconsistent with the majority's inference that Modell shared
the drawings with someone at the NFLP. For instance, Mr. Cope testi-
fied that the Ravens did not forward any materials or drawings to the
NFLP after March 18, 1996, approximately two weeks prior to
Bouchat's claimed date of access.4   4 Similarly, the undisputed evidence
indicates that Bouchat's shield drawing was not received by the NFLP
in New York. Bruce Burke, the NFLP's vice president and creative
director, when asked whether he saw any of Bouchat's drawings prior
to the final selection of the Ravens logos, testified simply, "No, abso-
lutely not." J.A. 864. Similarly, Paula Guibault, the NFLP's senior
intellectual property counsel, when asked whether she had seen any
of Bouchat's drawings prior to the initiation of this lawsuit, replied,
"No, I did not." J.A. 1053. And finally, both Kim and Osaki, the
NFLP artists responsible for the design of the Ravens shield logo, tes-
_________________________________________________________________
4 In finding the evidence sufficient to support the jury's finding of
access, the district court relied largely on evidence "that at least on two
occasions in the pertinent time period, unsolicited sketches were sent by
Mr. David Modell to NFLP." J.A. 1314. However, both of these submis-
sions were forwarded to the NFLP prior to the Ravens's institution of a
no-forwarding policy on March 18, 1996. By contrast, as Cope's undis-
puted testimony indicated, the policy was in effect when Bouchat alleg-
edly faxed his shield drawing on April 1, 1996. Therefore, the district
court's suggestion that unsolicited sketches were forwarded to the NFLP
during "the pertinent time period" is inaccurate.

                  18
tified unequivocally that they had never seen any drawings submitted
by Bouchat.5
           5

Given the complete absence of evidence that Bouchat's shield
drawing was received in the NFLP's New York office, the inference
that the NFLP designers had access to the drawing is the result of an
illogical and impermissible series of inferences. Although the old rule
that disallowed the piling of inference upon inference has been abro-
gated, such pilings must be "well supported by the evidence. We must
. . . tak[e] into consideration that its probability may be attenuated by
each underlying inference." Cora Pub, Inc. v. Continental Cas. Co.,
619 F.2d 482, 486 (5th Cir. 1980). In this case, the endless piling of
unsupported and contradicted inference upon inference upon infer-
ence rises to the level of absurdity.

2.

In the copyright context, a special requirement of access has been
established to prevent exactly the sort of problem this case presents.
Other federal courts, perhaps after seeing a dizzying array of meritless
copyright claims, have offered insight into the problem. In Meta-Film
Assocs. v. MCA, Inc., 586 F. Supp. 1346 (C.D. Cal. 1984), for exam-
ple, the court rejected a claim of infringement over an unsolicited
script sent to a movie studio that eventually produced the movie "Ani-
mal House." In doing so it observed that "[i]n such a business [film
production], countless unsolicited scripts are submitted to numbers of
individuals on studio lots every day. Under these circumstances, it is
clearly unreasonable to attribute the knowledge of any one individual
. . . to every other individual just because they occupy offices on the
same studio lot."

The New York federal courts have frequently dealt with instances
of a plaintiff coming forward with a "bare corporate receipt," alleging
that he or she sent unsolicited material to various well-known compa-
_________________________________________________________________
5 Kim and Osaki were initially contradicted by Bouchat's "expert," who
testified that it was a "fact[ ]" that Asians -- Kim and Osaki are presum-
ably of Asian descent -- are "taught in their culture" to copy. J.A. at 160.
Three weeks after that improper testimony, the court instructed the jury
to disregard it.

                  19
nies. The plaintiff later sues when a similar work is produced. These
decisions have been steadfast in holding that access cannot be permis-
sibly inferred from such "bare corporate receipt." See Dimmie v.
Carey, 88 F. Supp. 2d 142, 146-49 (S.D.N.Y. 2000) (rejecting claim
of infringement on Mariah Carey song where plaintiff alleged sending
tape to Columbia Records, then theorized Carey's eventual access by
a "series of uncertain inferences" not unlike those offered by
Bouchat); Tisi v. Patrick, 97 F. Supp. 2d 539, 547-48 (S.D.N.Y. 2000)
(rejection of "bare corporate receipt" as proof of access under similar
facts); Cox v. Abrams, 1997 WL 251532 (S.D.N.Y. May 14, 1997)
(unpublished); Novak v. National Broad. Co., 752 F. Supp. 164
(S.D.N.Y. 1990).

Indeed, this is not the first time the NFL has been alleged -- on
unsupported facts -- to have infringed other artistic work in creating
a design. See Grubb v. National Football League Properties, Inc., 901
F. Supp. 36, 39 (D. Mass. 1995) (refusing to "discredit the testimony"
of numerous defense witnesses, responsible for the production of a
new logo for the New England Patriots, that they had never seen the
plaintiff's proposed logo, when the plaintiff had"not shown any evi-
dence" of access).

The facts here resound of those above. These cases typically
involve similar litigation over successful movies, books, songs or
other artistic works. Inevitably, a plaintiff comes forward claiming to
have thought of the idea first -- only to have no evidence, except for
having sent his or her work to a corporation or person affiliated with
the alleged infringer.6 6 While some also have proof that somebody
read their work, many do not.7 7 But where the proof is extraordinarily
_________________________________________________________________
6 Indeed, Dimmie, supra, involved the second plaintiff to bring a claim
of infringement against Mariah Carey over the song"Hero." An earlier
case, described by the court as a "complete fabrication," was also dis-
missed. See Selletti v. Carey, 177 F.R.D. 189, 193 (S.D.N.Y. 1998).
7 At least two recent cases have indicated that the lack of "concrete evi-
dence" of actual receipt "such as a postage receipt or an entry in . . . sub-
mission log[s]" can be dispositive of a claim of access based merely on
corporate receipt. See Tomasini v. Walt Disney Company, 84 F. Supp. 2d
516, 520 (S.D.N.Y. 2000); Dimmie, 88 F. Supp. 2d at 146 (S.D.N.Y.
2000).

                   20
thin and based on a chain of unsupported and fanciful inferences, the
courts have rightfully found the access requirement unmet. In stark
contrast to this insight, the majority dismantles the access requirement
by allowing a tenuous, unproved, contradicted, and inconsistent chain
of inferences to satisfy Towler and prove access. This guts the entire
purpose of the access requirement, and it will inevitably lead to fur-
ther jury verdicts ad absurdum.

IV.

After incorrectly concluding that Bouchat had met his burden of
showing access under Towler, the majority unnecessarily adopts a
new legal principle -- the "strikingly similar" doctrine.8
                                                         8 The majority
concludes that, even if the plaintiff had not met the burden of showing
access, the "striking similarity [between the plaintiff's original work
and the alleged infringing work] is one way to demonstrate access."
Ante at 7. That is, based on the striking similarity between Bouchat's
shield drawing and the Ravens shield logo, Bouchat is entitled to an
inference that the defendants had a reasonable opportunity to view
and thereby copy his work.

A.

This is an interlocutory appeal under the provisions of 28 U.S.C.
§ 1292(b). The issues presented are: (1) Was the plaintiff's proof of
a reasonable possibility of access legally insufficient? (2) If so, will
_________________________________________________________________
8 The majority concedes that we have never adopted the "strikingly
similar" doctrine. In the only case in which we have addressed this issue
on the merits, albeit in an unpublished decision, we expressly rejected
the adoption of the doctrine. See Takeall v. Pepsico, Inc., No. 93-1237,
1993 WL 509876 (4th Cir. Dec. 8, 1993). In Takeall, the plaintiff urged
us to adopt a "per se rule regarding the elimination of the need for proof
of access in cases involving `striking similarity.'" Id. at *4. Relying on
the Second Circuit's decision in Gaste v. Kaiserman, we observed that
while "striking similarity alone can raise an inference of copying, that
inference must be reasonable in light of all the evidence." 1993 WL
509876, at *5 (quoting Gaste, 863 F.2d at 1068). Accordingly, we
rejected the plaintiff's arguments, concluding that adoption of such a per
se rule would be "inadvisable and unsupported by law." Id.

                  21
the Fourth Circuit adopt the `strikingly similar' doctrine inferring
access as expressed in Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2d
Cir. 1988)?" J.A. 1328-29 (emphasis added). After holding that the
plaintiff's proof of access was not insufficient, the majority had no
reason to answer the second question. It does so nevertheless and, in
my view, does so incorrectly.99

Relying on Gaste and the Seventh Circuit's decision in Selle v.
Gibb, the majority adopts the "strikingly similar" doctrine, which
holds that "striking similarity is circumstantial evidence of copying,
thereby supporting an inference of access." Id. In Gaste, the Second
Circuit described the contours of the doctrine as follows:

        Though striking similarity alone can raise an inference of
        copying, that inference must be reasonable in light of all the
        evidence. A plaintiff has not proved striking similarity suffi-
        cient to sustain a finding of copying if the evidence as a
        whole does not preclude any reasonable possibility of inde-
        pendent creation.

Gaste, 863 F.2d at 1068 (emphasis added).

Similarly, the Seventh Circuit in Selle recognized that striking sim-
ilarity does not completely eliminate the need for additional proof of
access:

        [S]triking similarity is just one piece of circumstantial evi-
        dence tending to show access and must not be considered in
        isolation; it must be considered together with other types of
        circumstantial evidence relating to access. As a threshold
        matter, therefore, it would appear that there must be at least
        some other evidence which would establish a reasonable
        possibility that the complaining work was available to the
        alleged infringer. . . . The plaintiff must always present suf-
        ficient evidence to support a reasonable possibility of access
        because the jury cannot draw an inference of access based
        upon speculation and conjecture alone.
_________________________________________________________________
9 The majority's adoption of the"strikingly similar" doctrine is unnec-
essary dicta, and should accordingly lack precedential value.

                   22
741 F.2d at 901. Based on Gaste and Selle, the majority maintains
that Bouchat is entitled to an inference of access because of the strik-
ing similarity between the Ravens shield logo and his shield drawing.

B.

I am unable to join in the majority's endorsement of the "strikingly
similar" doctrine. The doctrine's underlying assumption is that where
two works are so strikingly similar, there is a high probability that one
was copied from the other. See Gaste, 863 F.3d at 1067-68. However,
this assumption, standing alone, runs contrary to a fundamental prin-
ciple of copyright protection: independent creation. See Feist, 499
U.S. at 345 (recognizing that "originality," the sine qua non of copy-
right protection, requires independent creation and some degree of
creativity). Evidence of copying -- access plus substantial similarity
-- is "crucial to any claim of copyright infringement because no mat-
ter how similar the two works may be (even to the point of identity),
if the defendant did not copy the accused work, there is no infringe-
ment." 741 F.2d at 901 (citation omitted). Indeed, "two works may be
identical in every detail, but, if the alleged infringer created the
accused work independently or both works were copied from a com-
mon source in the public domain, then there is no infringement." Id.
As Judge Learned Hand observed in Sheldon v. Metro-Goldwyn Pic-
tures Corp., 81 F.2d 49 (2d Cir. 1936), aff'd, 309 U.S. 390, 392
(1940), "[I]f by some magic a man who had never known it were to
compose anew Keats's Ode on a Grecian Urn, he would be an
`author,' and, if he copyrighted it, others might not copy that poem,
though they might of course copy Keats's." Id. at 54.

However, under the majority's "strikingly similar" doctrine, one
who plagiarized Keats's Ode on a Grecian Urn in 1820 would argu-
ably be entitled to an inference of infringement-- based merely on
the similarity of the two works -- against one of England's greatest
poets. Such an absurd result illustrates why the requirement of prov-
ing substantial similarity should remain independent of the require-
ment of demonstrating access -- Keats's poem is"strikingly similar"
to the hypothetical plaintiff's poem because the plaintiff copied it
from him.10 Simply put, in examining a plaintiff's circumstantial evi-
dence of copying, proof of one element should not allow a court to
infer the existence of the other.


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 un-
veiled their logo.

                  23
V.

For the foregoing reasons, I have concluded that the jury's verdict
in favor of Bouchat is unsupported both factually and legally, and I
respectfully dissent.

                  24
