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Law of Cards: How a Ruling Against EA Sports Could Help Unlicensed Trading Cards

Law of Cards: How a Ruling Against EA Sports Could Help Unlicensed Trading Cards

The right of publicity in the trading card world is an often-litigated issue.

Legal translation of right of publicity: Basically, do card companies need permission or a "license" to use a player or celebrity's likeness, image or signature?

That translation's still a little too egg-headed. Let's try this: Legal translation of legal translation: Do card companies have to pay players and celebrities to include them in their products?

Over the last few years, just about every large trading card company has been involved in at least one lawsuit over this issue. There was Kareem-Abdul Jabbar v. Upper Deck, Buzz Aldrin v. Topps and Leaf v. Andrew Luck suits. But none of these lawsuits gave the industry an answer about when manufacturers needed to pay athletes and celebrities to include them in their products.

The Buzz Aldrin suit was the closest, but its holding is really limited to one of the most historical moments in history: the first moon landing. This case made clear that a historical event is in the public domain (along with the images of people involved in it), but does not provide guidance for less famous moments or figures.

It's no secret, but I'm a big fan of limiting the right of publicity for athletes and celebrities when it comes to trading cards. To me, trading cards are little encyclopedia pages. Sure, most don't cover the most historical of events, but even if a perennial minor league catcher in the one game he plays in the big leagues goes 0 for 3, he's still a part of that year's baseball season and the history of his franchise. Because of this, no player should be able to prevent others from telling his story (no matter how big or small that story might be). Therefore, it's my opinion that trading cards should be afforded protection under the First Amendment, and the right of publicity should be limited.

But, as of yet, there has not been a big decision to give manufacturers the guidance they need to decide when (or when not) to pay.

Ironically, the decision that might have the biggest impact comes not from The Hobby, but from the world of video games.

Last week, the Ninth Circuit handed down a decision in Keller, et al. v. Electronic Arts. This decision concerned Electronic Art's ("EA") NCAA Football series of video games. In these games, EA allowed gamers to control avatars representing college football players. The avatars had the same look, statistics, positions and jersey numbers as actual players but EA did not include the players' names.

Samuel Keller, the lead plaintiff, was the starting quarterback for Arizona State University in 2005 until 2007 when he transferred to the University of Nebraska. Keller alleged EA owed him and other NCAA athletes for using their likeness in these games without their permission.

EA tried knocking the lawsuit out with an early motion to dismiss, citing its games were protected by the First Amendment. EA argued that its games are real-world and therefore historical, especially since they include the correct stats for players. Even so, EA lost round one at the district court level and appealed. This week, the Ninth Circuit (in a 2 to 1 decision) affirmed the district court.

Legal translation: At this early stage, EA cannot rely on the First Amendment as a complete defense. According to the judges, the case will continue.

Now, if you don't dive into the opinion, it sounds like the Keller decision would also strengthen players' right of publicity claims in the trading card world as well.

Not so.

In the decision, the Ninth Circuit addressed the prior case of Gionfriddo v. Major League Baseball in which retired baseball players alleged Major League Baseball violated their rights of publicity by displaying "factual data concerning the players, their performance statistics, and verbal descriptions and video depictions of their play" in game programs and on its website. The Gionfriddo court found in favor of MLB because MLB recited and discussed "factual data concerning the athletic performance" of the players, and because this "factual data" held a "substantial public interest," MLB's use of such data was protected by the First Amendment.

Legal translation: Basically, statistical data of players equals facts. No one can own facts.

The Keller v. EA decision also discussed the case of Montana v. San Jose Mercury News, Inc. in which Joe Montana brought a right-of-publicity action against a newspaper for selling posters containing previously published pages from the newspaper depicting the many Super Bowl victories by Montana and his 49ers. The Montana court found that the posters portraying the 49ers' victories were "a form of public interest presentation to material which protection must be extended."

Legal translation: Players can't control photos of historical events. This decision builds on the Buzz Aldrin v. Topps case by bringing historical events, back to earth. Literally.

After discussing these cases, the Ninth Circuit differentiated EA 's NCAA Football games from the protected works in Gionfriddo and Montana because EA was "not publishing or reporting factual data." Sure, the video games were real-world, but EA only "incorporated certain actual player information into the game (height, weight, etc.)." EA's decision not to include athlete names hurt its case. As the Ninth Circuit reasoned:

"EA can hardly be considered to be 'reporting' on Keller's career at Arizona State and Nebraska when it is not even using Keller's name in connection with his avatar in the game. Put simply, EA's interactive game is not a publication of facts about college football, it is a game, not a reference source."

Legal translation: I guess you can say that EA did not copy enough to get First Amendment protection. Really? That's the take home of Keller? You need to steal more to get First Amendment protection?

Well, kinda. At least subliminally, EA's inclusion of all data about players except for their name looks bad. It's history, sure, but when you purposefully omit who was involved (so as to not pay them), it looks less like you are reporting history than, well, trying to make the most money you can.

Turning to trading cards, the recitation of factual data (on the back of cards) and inclusion of the players' images (along with the players' names), would seem to afford trading cards protection under the Gionfriddo and Montana cases. Trading cards really are little encyclopedia pages that "report" on the careers of the players, therefore, they should be protected.

So, while the Keller decision may be a knock against EA, it likely helps promote unlicensed use of player and celebrity images for trading card manufacturers.

Now, I doubt this decision is going to start a wave of unlicensed cards. The right of publicity is different in every state. Given the global economy, it's nearly impossible to sell product in some states and not others.

Legal translation: Until all 50 state courts rule trading cards have First Amendment protection, there will be risk.

This case might not usher in a new age of unlicensed products. But, for aggressive card manufacturers, it's a pretty good decision to keep in hand. And after they get sued, to report it to the court.

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.

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Paul Lesko has litigated complex and intellectual property actions for over 18 years. 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 card collector. He's also the author of the novel Gastric Bypass, available for purchase at Amazon. Paul can be found on Twitter @Paul_Lesko and Google+.

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