Frederick E. BOUCHAT, Plaintiff-Appellee, v. BALTIMORE RAVENS, INCORPORATED; National Football League Properties, Incorporated, Defendants-Appellants, 228 F.3d 489

Affirmed by published opinion. Senior Judge MICHAEL wrote the opinion, in which Judge WIDENER joined. Judge KING wrote a dissenting opinion. OPINION MICHAEL, Senior District Judge: Frederick E.

Bouchat (the “plaintiff-ap-pellee”) 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 drawings consisting entirely of his original work, including a shield drawing 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 drawing. 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 defendants had access to Bouc-hat’s drawing. The district court, by order, denied defendants’ motion in February of 1999. In April 1999, however, 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 education, and now works as a front entrance security guard at the State of Maryland Office building on St. Paul Street in Baltimore. Bouchat 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 possible 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 buüding 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 Bouc-hat 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 Stadium Authority (MSA).

Jan Drabeck, Bouc-hat’s immediate supervisor, showed Bouc-hat 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 M.S.A. 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 project. 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 drawing. 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. Defendants filed a motion for judgment as a matter of law which the district court denied. The district court then certified the following questions for interlocutory appeal:

(1) Was the plaintiffs proof of a reasonable possibility of access legally insufficient?

(2) If so, will the Fourth Circuit adopt the “strikingly similar” doctrine inferring access, as expressed in Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2d Cir.1988)?

(3) Should the copyright 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 second, that the defendant copied protected elements of the work. See Towler v. Sayles, 76 F.3d 579, 581 (4th Cir.1996) (citing Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (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. 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 “tortuous 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 Bouc-hat’s proof amounts only to a “tortuous chain of hypothetical transmittals” and therefore is legally insufficient to prove access. Defendants’ argument is not persuasive. In Towler, the plaintiff 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 plaintiffs 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 in-fringers on the design project). Bouchat testified that Moag offered to forward his (Bouchat’

s) drawings to the Ravens and that Bouchat sent the fax of the drawings to MSA, addressed to Moag. The jury was entitled to credit that testimony. Evidence was also introduced that the regular practice at the M.S.A. 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 Bouc-hat’s drawing. The chain of transmittals is far more than hypothetical — it is based on 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, Bouc-hat 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 sufficient evidence to sustain that burden. Having concluded that Modell had access to the drawings, the jury was able to combine that conclusion with the substantial similarity between the Raven’s logo and Bouc-hat’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 himself, 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 sufficient to demonstrate access even if we do not posit any fortuitous misdelivery of the fax.

A copyright infringement plaintiff need not prove that the infringer actually saw the work in question; it is enoqgh to prove that the infringer (or his intermediary) had the mere opportunity to see the work and that the subsequent material produced is substantially 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. III.

The second question certified on interlocutory appeal is conditional, requesting a response if the answer to the first certified question was that the plaintiffs evidence of access was insufficient. This court remains firm in its holding that the plaintiffs 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 circuit will adopt the “strikingly similar” doctrine inferring access, as expressed in Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2d Cir.1988).

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 reasonable 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 independent 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 requirement 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 Second and Seventh Circuits. There is no binding precedent in the Fourth Circuit that addresses the substance of the Gaste opinion. As discussed in

Section II of this opinion, the plaintiff in this matter made a reasonable showing of access, independent from the striking 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 plaintiffs copyright application. Defendants’ argument on this point must be rejected. Bouchat’s drawing contains several public domain elements which are not protect-able. These elements, however, were selected, coordinated, 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, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); M. Kramer Manufacturing Co., Inc. v. Andrews, 783 F.2d 421, 438-39 (4th Cir.1986).

The drawing, therefore, is entitled to copyright protection. The district court recognized that Bouchat failed to note the derivative nature of his authorship in his copyright application, but the court also found that there is no evidence of any fraudulent or knowing misstatement with regard to the application. (JA at 1310.) This court held, in Service & Training, Inc. v. Data 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 copyright 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 Bouchat of all copyright protection and thus is fatal to his infringement 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 application do not subsequently preclude an infringement action against an alleged copier. V.

Although the jury had difficulty in reaching a verdict, and the district 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 reviewing 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 scheduling 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 suggesting 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. 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. .

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. . Prior to the instant opinion, this court has only cited Gaste in one published opinion. In Towler v. Sayles, this court mentions Gaste but 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).