One of the biggest legal questions in the hobby is whether trading card companies need permission from athletes and celebrities to use their likeness, images, signatures, etc. on cards.
Legal translation: In other words, do card companies have to pay the athletes and celebrities?
The assumption in the industry is that card makers need permission for such uses. This has been how the industry has been run for decades, if not for over a hundred years.
Recently, a couple high-profile cases challenged the status quo. One was Kareem Abdul-Jabbar v. Upper Deck, the other was between astronaut Buzz Aldrin and Topps.
The Abdul-Jabbar case, however, settled right as its trial began, so it did not give any guidance on this issue whatsoever (although it did offer a bit of entertainment when allegations of drunkenness arose during depositions).
This left the Aldrin case to weigh in on the topic. And it did advance the ball a little. The district court indicated that, in some instances, permission is not required. In that case, the Aldrin cards and packaging in 2009 Topps American Heritage: Heroes Edition focused on the first moon landing, one of the most historic events of the twentieth century. Because of the importance of that event, the court found that it was not necessary to get permission. Otherwise, it could allow people to remove this historic event from the public domain.
The Aldrin case then went up to the court of appeals, and the industry was waiting to see whether the court would uphold, or reverse, that order.
Legal translation: Lower court holdings are good, but they really apply to only one court that likely takes only one area of a state. A federal court of appeals holding, however, applies to an entire region of the country and carries more weight. Therefore, it would provide more guidance.
Unfortunately, the Aldrin case will not be providing that guidance. It recently settled.
Sure, it stands for the proposition that, for certain historic events, permission is likely not required. But what constitutes a historic event? Does any sporting event come close to the moon landing? Sure, diehard fans will argue that some do, but the majority of people would agree sporting events don't rise to that level of fame.
However, many sporting events and athletes are historic. So does the reasoning in the Aldrin v. Topps holding apply to them? We just don't know where the boundary is to make that determination. Also, add the fact that the Aldrin case is not controlling for all states, and there is another degree of uncertainty.
Now, this issue isn't dead. There is still one more case out there that could give guidance: Leaf v. Andrew Luck. Granted, Andrew Luck playing in the 2008 U.S. Army All-American Bowl is certainly not as historic as a man landing on the moon. But it is a specific event showcasing a major name in football. And while Luck is the most impressive prospect in football today, a ruling in either party's favor will definitely give more guidance for when permission is required.
Likely, given that the Abdul-Jabbar and Aldrin cases settled, I imagine the Luck case will settle also. There's just not enough money involved in these cases to fight it all the way through the district court, then up on appeal, even to have the issue decided.
Legal translation: In all likelihood, the attorneys' fees and costs in these cases will exceed any recovery. Given that most companies run on money, it'll be cost prohibitive to have a court weigh in on this issue.
In the meantime, congratulations are owed to Topps for wrapping up this action, but couldn't you guys have let it go on for just a little bit longer?
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