Law of Cards: Upper Deck in Legal Dispute Over Presidential Trading Cards

Law of Cards: Upper Deck in Legal Dispute Over Presidential Trading Cards

2011 Upper Deck World of Sports World of Politics Mitt Romney Variation 214x300 Image Upper Deck has found itself involved in yet another lawsuit. On August 3, the card maker filed a declaratory judgment action against Executive Trading because, get this, Executive sent a cease and desist letter to Upper Deck, telling it to stop making presidential candidate trading cards.

The cards at issue are the nine World of Politics inserts from 2011 Upper Deck World of Sports. The politicians depicted in these cards are President Obama, Mitt Romney, Newt Gingrich, Michele Bachmann, Ron Paul, Herman Cain, Sarah Palin, Rick Perry and Rick Santorum.

Legal aside: Wait,I collect cards involved in lawsuits. So, I now have to collect cards of Sarah Palin and Michele Bachman? Come on!

The whole brouhaha started when Executive sent Upper Deck a cease and desist letter, accusing Upper Deck of "stealing" Executive's "ideas" for political cards, and of violating Executive's copyright registrations.

Executive also asked Upper Deck to pay it $350,000.

In response to this letter, Upper Deck did what it does fairly well and sued Executive for a declaratory judgment.

Legal translation: Basically, Upper Deck is asking the court to rule that Executive's positions are BS.

There's another claim that Upper Deck allegedly breached a nondisclosure agreement in the cease and desist letter, but, Upper Deck says those allegations are without merit too because Executive wanted to "develop whole educational sets depicting already-elected officials as a stand-alone product and on non-standard card stock," and Upper Deck decided not to go forward with that.

Now, Upper Deck did not file the cease and desist letter or nondisclosure agreement, so the summary of their contents comes solely from the complaint. And if Upper Deck's summary is correct, Executive really did a bone-headed thing here.

As the complaint points out, Upper Deck offered Obama and Palin cards in 2008, years before Executive even came into existence (which the complaint states was 2009). Topps also had lots of political cards in several sets leading up to the 2008 election. Also, a copyright claim would require Upper Deck to have access to and copy the actual cards, not the idea of a card.

Legal translation: It's a fundamental concept that copyrights only protect works (like the actual cards themselves) from being copied. They cannot be used to protect people from copying ideas (like making cards of politicians).

Now, we'll need to see what Executive's position is to determine whether it really has a claim against Upper Deck. Maybe in the nondisclosure agreement, there's a non-compete prohibiting Upper Deck from making cards like this. Or maybe Upper Deck actually copied some of Executive's cards that Executive registered with the Copyright Office (although I couldn't find any). I think both are a stretch, but you never know.

We'll just have to wait and see what Executive's response is.

Here is a copy of the full seven-page complaint.

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Paul Lesko is a shareholder at Simmons Hanly Conroy and the chair of its Intellectual Property Department (http://www.simmonsfirm.com). Don’t hold the fact that Paul is a lawyer against him, he’s also a rabid baseball and college basketball fan, and an avid baseball card collector. Paul can be found on Twitter @Paul_Lesko and Google+.

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