Man on the Moon: Topps Wins First Round in Buzz Aldrin Lawsuit

Man on the Moon: Topps Wins First Round in Buzz Aldrin Lawsuit

Topps has won the first significant battle in a lawsuit brought by astronaut Buzz Aldrin, who is suing Topps for allegedly misappropriating his image.

The lawsuit began in 2009, when Topps released a trading card set entitled Topps American Heritage: American Heroes Edition. This set included images of more than a hundred well-known American politicians, actors, athletes, scientists, organizations, artifacts, and events. The back of each card also contained historical information about the image displayed on the front.

The set was like an encyclopedia (Do they still make those?), except more collectible because it contained cut autographs, patches and even pieces of space shuttles.

Topps Heritage box 260x137 ImageLast December, Aldrin filed suit against Topps alleging that he did not give Topps permission to use his name, image, and likeness with respect to 1) an image on the cardboard box, 2) a Gemini XII card, and 3) a Buzz Aldrin “cut signature" card.

Aldrin also moved for a preliminary injunction, a type of extraordinary relief.

Legal translation: Aldrin wanted the product yanked off the market while the suit was ongoing. Succeeding on a preliminary injunction motion is very difficult because the plaintiffs must show they are likely to win and that they are being irreparably harmed (among other things).

On September 27, the court denied Aldrin's preliminary injunction motion because it found Topps' use of Aldrin's name, image and likeness was protected speech. Important to the court's decisions was that “the cards use[d] Aldrin's name in the course of conveying information about his historically significant achievements" and were not used for purely commercial purposes like advertisements.

Legal translation: Think about books on space flight or biographies about astronauts. Those books contain factual information when they refer to people and use their images. Allowing people to stop that would prevent the free exchange of ideas and allow people to basically own facts, which would, well, just plain suck. If that was allowed, biographies would be really confusing because they'd sound like this, “And then this guy (who we don't have permission to use his name) went up in space with this other guy (who we don't have permission to use his name)."

Aldrin is now appealing the order on the preliminary injunction, so within a matter of months we'll have an appellate court ruling on whether the lower court's order was correct.

I think the decision will likely stand. While there is a blurry line between a publisher using a person's name and likeness to convey information (which is legal even if the publisher is making money and not compensating that person) and a publisher using the name and likeness of a person purely to make money off that person's reputation (like releasing an all-Buzz Aldrin card set), Topps' cards here should fall within protected speech.

These cards are like flash cards for history. If a court would find them unlawful, it would be a slippery slope as it would open other legal questions.

I'm sure children everywhere would rejoice if historical figures had absolute control over who could use their names. I can see the answers to a fourth grade history test under this regime now:

Q)    Name the first people to land on the moon. A) Some guys.

You are correct! A+!

I'm not saying that's what Aldrin is doing, but thoughts like this are in the back of judges' minds when they issue their orders (or at least you hope so). Because of that, if there's a close case, most judges would err on the side of free speech.

So, sorry little Johnny, you are going to need to learn that Buzz Aldrin was an astronaut involved in the first moon landing. And, yes, he's different than that other “Buzz" from Toy Story.

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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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