For a fictional character, John Henry, the steel-driving man, is causing a very real headache for Topps. It turns out the alleged model for the card was a former Topps employee who was relieved of his duties before he gave explicit permission that his image could be used.
2011 Topps Triple Threads Baseball had a trio of gimmick cards for fictional characters John Henry, Leif Ericson and Pecos Bill. While just five of each were made, many collectors felt they didn't have a place in a high-end product. They didn't want "relics" for a figure from a tall tale in a third-grade reader.
Even Mark Sapir, Topps' Vice President of Marketing for Sports & Entertainments, voiced some concern about the card's inclusion during a Cardboard Connection Radio interview last fall. At the time, his comments made me chuckle.
The card was, if anything, just a minor headache for Topps. Their low production run probably meant that they sold well on the secondary market. The detractors forgot about them and moved on.
But now that minor headache has the potential to become a full-blown PR migraine. Former Topps employee Christopher Holmes, the alleged model for the card, just filed a lawsuit against the card maker.
According to the lawsuit, Topps took a picture of Mr. Holmes for a "trading card promotion that Topps was contemplating," but did not tell him exactly what it was for. In his complaint, Mr. Holmes states that he did not give Topps permission to use the picture, especially when they portray him as a former slave. To make matters more interesting, Mr. Holmes alleges that he was fired before the card was printed.
Legal Translation: Mr. Holmes' argument boils down to this: They took my picture. They fired me. And then to humiliate me, they used the picture without my permission, and called me a slave.
I could see that getting traction with a jury. Obviously, Topps' position will likely be, "Heck, we made him a legend!" I can see that getting traction with a jury, too.
Normally, a case like this boils down to a close analysis of the worker's employment agreement. Add in claims of disparagement with racial undertones, however, and this case becomes more complex.
It's too early to predict a winner since we have yet to learn Topps' position. Hopefully, in the next filing, Topps will give its side of the story.
Regardless, I can't help to think that, somewhere in the Topps marketing and legal departments, there are a few people slapping their heads right now saying, "Who thought that card was a good idea?"
Headaches may be contagious at Topps over the next few days.
The information provided in Paul Lesko's “Law of Cards" column is not intended to be legal advice, but merely conveys general information related to legal issues commonly encountered in the sports industry. This information is not intended to create any legal relationship between Paul Lesko, the Simmons Browder Gianaris Angelides & Barnerd LLC or any attorney and the user. Neither the transmission nor receipt of these website materials will create an attorney-client relationship between the author and the readers.
The views expressed in the “Law of Cards" column are solely those of the author and are not affiliated with the Simmons Law Firm. You should not act or rely on any information in the “Law of Cards" column without seeking the advice of an attorney. The determination of whether you need legal services and your choice of a lawyer are very important matters that should not be based on websites or advertisements.