Lessons on Intellectual Property Litigation From the Baltimore Ravens Defense

This is a great story on long running copyright litigation between the Baltimore Ravens football club and a security guard and doodler, over the rights to the Ravens’ emblem. The court bifurcated the case, with liability being tried first. The jury in the liability portion of the case found infringement, but the next jury, in the damages portion of the case, awarded nothing in damages, finding that the plaintiff was not injured by the infringement. I bring this story up for three reasons. The first is that it is a just plain, good old fashioned read, even if you don’t care one bit about copyright law or, perhaps even more unforgivably, the Ravens.

The second though, is the more important one. I have done a fair bit of patent and copyright litigation (especially the latter) over the years, almost exclusively for defendants, and it is a lot harder to actually win and recover significant money on copyright infringement claims than many people – including most lawyers – believe. The headline stories of massive awards in patent infringement cases lead people to extrapolate across the board to other types of intellectual property cases, but those cases don’t actually extrapolate well. The various defenses available to defense counsel in copyright infringement cases makes for a tough road in that area for plaintiffs (much to my happiness, I admit, when I am representing copyright defendants).

And finally, the third point the article drives home is this one. When representing plaintiffs in intellectual property cases, always think twice before deciding to accept bifurcation without a vigorous battle. Its hard enough to convince a jury to find infringement, but once having done so, it is better to move onto damages in front of that same jury, with whom you have presumably already established credibility. Bifurcation forces the plaintiff to reestablish that credibility, and any sympathy, all over again in front of a new jury, and causes the plaintiff to lose whatever momentum led to the liability verdict in the first place. All trial lawyers have their own pet theories; that is one of mine.