Insider upper deck/mlb update?

[THECARDFATHER]

I've heard from a little bird that Upper Deck may be able to get out of this MLB infringement by bringing up sports illustrated as an example of a company that makes money off photos of players depicted in their MLB uniforms with full logos showing. SI to my knowledge does NOT pay royalties to MLB properties for their photos. Anyone hear anything close to this?

If this holds true and the case was indeed dropped, good for Upper Deck. I will be very impressed with their cajones of steel.

Editorial vs. commercial usage. Upper Deck can't play the editorial usage card.

With all respect, you are making an invalid assumption. If you consult a attorney specializing in this field (which I did just prior to posting this), the case can be made that a card is covered by the same first amendment protection as a magazine, newspaper or website. In fact magazines and newspapers sell advertising in addition to the newspaper or magazine itself making them even more commercial than trading cards.

You never know what a judge or jury will do, but this could be a groundbreaking case for trading cards.

 

[Crash Davis]

I've heard from a little bird that Upper Deck may be able to get out of this MLB infringement by bringing up sports illustrated as an example of a company that makes money off photos of players depicted in their MLB uniforms with full logos showing. SI to my knowledge does NOT pay royalties to MLB properties for their photos. Anyone hear anything close to this?

If this holds true and the case was indeed dropped, good for Upper Deck. I will be very impressed with their cajones of steel.

Editorial vs. commercial usage. Upper Deck can't play the editorial usage card.

With all respect, you are making an invalid assumption. If you consult a attorney specializing in this field (which I did just prior to posting this), the case can be made that a card is covered by the same first amendment protection as a magazine, newspaper or website. In fact magazines and newspapers sell advertising in addition to the newspaper or magazine itself making them even more commercial than trading cards.

You never know what a judge or jury will do, but this could be a groundbreaking case for trading cards.

So based on your, and your attorney friend's, assumption, I can now print my own line of MLB fitted caps and not have to pay MLBP for use of their "TRADEMARKED" logos.

Or, I can now print my own clothing line. Let's call it Fast-Balls. I'm going to now market a full line of shirts for every single MLB team and put them in Target, Wal-Mart and K-Mart, right next to the MLBP-licensed shirts and hats, that looks exactly the same incidentally.

Because I don't have to pay the licensing fees to MLBP, I can charge less for the shirts, and considering that they have the exact same logos, I will make more of a profit than that the company that markets the MLBP-licensed gear.

WHAT IS THE USE OF TRADEMARKING ANYTHING?!

It would seem that the use of trademarks would become obsolete.

 

[THECARDFATHER]

No, caps are very different than periodicals, which trading cards are.
Periodicals have first amendment protection. Look up Cardtoons v. MLBPA.
Judge was very clear that news and educational value outweigh a person's (or jersey they are wearing in this case) publicity rights.

There is a huge difference between a book/magazine/card and a jersey or other piece of apparel.

Either way, this case will be fun to follow.

 

[Crash Davis]

No, caps are very different than periodicals, which trading cards are.
There is a huge difference between a book/magazine/card and a jersey.

Since when are trading cards considered "periodicals?"

Seriously, that is one HUGE straw-clutch right there.

Trading cards are NOT periodicals. If trading cards are periodicals, so are cereal boxes.

And what if my "t-shirt" contained statistics and bullet-pointed tidbits of information, and came out once per year. Would that then be considered a periodical under your definition.

Here's the wikipedia definition of a periodical:

"A periodical publication, or just periodical, is a published work that appears in a new edition on a regular schedule. The most familiar examples are the newspaper, often published daily, or weekly; or the magazine, typically published weekly, monthly or as a quarterly. Other examples would be a newsletter, a literary journal or learned journal, or a yearbook."

 

[Crash Davis]

No, caps are very different than periodicals, which trading cards are.
Periodicals have first amendment protection. Look up Cardtoons v. MLBPA.
Judge was very clear that news and educational value outweigh a person's (or jersey they are wearing in this case) publicity rights.

There is a huge difference between a book/magazine/card and a jersey or other piece of apparel.

Either way, this case will be fun to follow.

I read the case. I respectfully disagree with your analogy.

First of all, MLBPA sued them, not MLBP.

Secondly, Cardtoons didn't use logos on their cards! AND, the player's images are not trademarked and the images are drawn and not actual photos.

 

[THECARDFATHER]

I guess well see at trial. However:

1> "A periodical publication, or just periodical, is a published work that appears in a new edition on a regular schedule.
Sets are publised 18 times per year.

2> The most familiar examples are the newspaper or the magazine
Most familiar is the operative term. Your very narrow definition does not acknowledge the internet as media/periodicals. Do you feel the internet is excluded?

I am most excited because this opens the door for smaller companies to take on the big card makers.
This can only be good for us as buyers of product. Competition is welcome by me.

 

[THECARDFATHER]

No, caps are very different than periodicals, which trading cards are.
Periodicals have first amendment protection. Look up Cardtoons v. MLBPA.
Judge was very clear that news and educational value outweigh a person's (or jersey they are wearing in this case) publicity rights.

There is a huge difference between a book/magazine/card and a jersey or other piece of apparel.

Either way, this case will be fun to follow.

I read the case. I respectfully disagree with your analogy.

First of all, MLBPA sued them, not MLBP.

Secondly, Cardtoons didn't use logos on their cards! AND, the player's images are not trademarked and the images are drawn and not actual photos.

Again, you must not have read the actual decision. The judge specifically says, " A players publicity right is outweighed by the news and educational value of a trading card".
The judge did not limit this to parody or art. It was clearly stated as above.
If the player is not proected, the jersey doesn't stand a chance.

No need to argue further. The courts will sort all of this mess out.
You nor I are lawyers (although I did consult a specialist in the field).
Either way, it will be fun to watch.

 

[JEA2880]

No, caps are very different than periodicals, which trading cards are.
Periodicals have first amendment protection. Look up Cardtoons v. MLBPA.
Judge was very clear that news and educational value outweigh a person's (or jersey they are wearing in this case) publicity rights.

There is a huge difference between a book/magazine/card and a jersey or other piece of apparel.

Either way, this case will be fun to follow.

I read the case. I respectfully disagree with your analogy.

First of all, MLBPA sued them, not MLBP.

Secondly, Cardtoons didn't use logos on their cards! AND, the player's images are not trademarked and the images are drawn and not actual photos.

Again, you must not have read the actual decision. The judge specifically says, " A players publicity right is outweighed by the news and educational value of a trading card".
The judge did not limit this to parody or art. It was clearly stated as above.
If the player is not proected, the jersey doesn't stand a chance.

No need to argue further. The courts will sort all of this mess out.
You nor I are lawyers (although I did consult a specialist in the field).
Either way, it will be fun to watch.

Well explained. In other words, the judge characterized the trading card as a periodical, which trumps wikipedia :lol:

 

[ChasHawk]

I've heard from a little bird that Upper Deck may be able to get out of this MLB infringement by bringing up sports illustrated as an example of a company that makes money off photos of players depicted in their MLB uniforms with full logos showing. SI to my knowledge does NOT pay royalties to MLB properties for their photos. Anyone hear anything close to this?

If this holds true and the case was indeed dropped, good for Upper Deck. I will be very impressed with their cajones of steel.

Editorial vs. commercial usage. Upper Deck can't play the editorial usage card.

With all respect, you are making an invalid assumption. If you consult a attorney specializing in this field (which I did just prior to posting this), the case can be made that a card is covered by the same first amendment protection as a magazine, newspaper or website. In fact magazines and newspapers sell advertising in addition to the newspaper or magazine itself making them even more commercial than trading cards.

You never know what a judge or jury will do, but this could be a groundbreaking case for trading cards.

So based on your, and your attorney friend's, assumption, I can now print my own line of MLB fitted caps and not have to pay MLBP for use of their "TRADEMARKED" logos.

Or, I can now print my own clothing line. Let's call it Fast-Balls. I'm going to now market a full line of shirts for every single MLB team and put them in Target, Wal-Mart and K-Mart, right next to the MLBP-licensed shirts and hats, that looks exactly the same incidentally.

Because I don't have to pay the licensing fees to MLBP, I can charge less for the shirts, and considering that they have the exact same logos, I will make more of a profit than that the company that markets the MLBP-licensed gear.

WHAT IS THE USE OF TRADEMARKING ANYTHING?!

It would seem that the use of trademarks would become obsolete.

It's of little consequense to this case, but have you been to Walmart or Target lately? There are 100s of 1,000s of unlicensed team apparel items out there.

 

[ru4scuba]

I've heard from a little bird that Upper Deck may be able to get out of this MLB infringement by bringing up sports illustrated as an example of a company that makes money off photos of players depicted in their MLB uniforms with full logos showing. SI to my knowledge does NOT pay royalties to MLB properties for their photos. Anyone hear anything close to this?

If this holds true and the case was indeed dropped, good for Upper Deck. I will be very impressed with their cajones of steel.

Editorial vs. commercial usage. Upper Deck can't play the editorial usage card.

With all respect, you are making an invalid assumption. If you consult a attorney specializing in this field (which I did just prior to posting this), the case can be made that a card is covered by the same first amendment protection as a magazine, newspaper or website. In fact magazines and newspapers sell advertising in addition to the newspaper or magazine itself making them even more commercial than trading cards.

You never know what a judge or jury will do, but this could be a groundbreaking case for trading cards.

If that's the case, why pay the MLBPA? If they are going to claim editorial usage then they don't need to pay for using the player's likeness and yet they are. By paying for some rights and not others it would appear that they are hampering their ability to claim editorial usage. I'm not a lawyer but I'm pretty familiar with trademark/copyright issues and I don't think UD has a leg to stand on.

 

[sportscardtheory]

I think the "Sports Illustrated and the like make money off of pictures of ball-players in uniform, why are we not allowed to?" is a pretty good argument.

 

[THECARDFATHER]

I've heard from a little bird that Upper Deck may be able to get out of this MLB infringement by bringing up sports illustrated as an example of a company that makes money off photos of players depicted in their MLB uniforms with full logos showing. SI to my knowledge does NOT pay royalties to MLB properties for their photos. Anyone hear anything close to this?

If this holds true and the case was indeed dropped, good for Upper Deck. I will be very impressed with their cajones of steel.

Editorial vs. commercial usage. Upper Deck can't play the editorial usage card.

With all respect, you are making an invalid assumption. If you consult a attorney specializing in this field (which I did just prior to posting this), the case can be made that a card is covered by the same first amendment protection as a magazine, newspaper or website. In fact magazines and newspapers sell advertising in addition to the newspaper or magazine itself making them even more commercial than trading cards.

You never know what a judge or jury will do, but this could be a groundbreaking case for trading cards.

If that's the case, why pay the MLBPA? If they are going to claim editorial usage then they don't need to pay for using the player's likeness and yet they are. By paying for some rights and not others it would appear that they are hampering their ability to claim editorial usage. I'm not a lawyer but I'm pretty familiar with trademark/copyright issues and I don't think UD has a leg to stand on.

They might argue they need signatures for the products and doing a deal with MLBPA is the easiest way to insure cooperation.

 

[uniquebaseballcards]

Yeah, what do logos and team names really mean in this hobby? Consider that Bowman shows players in uniforms and team names they never played for. Topps' Bowman prospect exemption comes back to bite them.

So based on your, and your attorney friend's, assumption, I can now print my own line of MLB fitted caps and not have to pay MLBP for use of their "TRADEMARKED" logos.

Or, I can now print my own clothing line. Let's call it Fast-Balls. I'm going to now market a full line of shirts for every single MLB team and put them in Target, Wal-Mart and K-Mart, right next to the MLBP-licensed shirts and hats, that looks exactly the same incidentally.

Because I don't have to pay the licensing fees to MLBP, I can charge less for the shirts, and considering that they have the exact same logos, I will make more of a profit than that the company that markets the MLBP-licensed gear.

WHAT IS THE USE OF TRADEMARKING ANYTHING?!

It would seem that the use of trademarks would become obsolete.

 

[ru4scuba]

I've heard from a little bird that Upper Deck may be able to get out of this MLB infringement by bringing up sports illustrated as an example of a company that makes money off photos of players depicted in their MLB uniforms with full logos showing. SI to my knowledge does NOT pay royalties to MLB properties for their photos. Anyone hear anything close to this?

If this holds true and the case was indeed dropped, good for Upper Deck. I will be very impressed with their cajones of steel.

Editorial vs. commercial usage. Upper Deck can't play the editorial usage card.

With all respect, you are making an invalid assumption. If you consult a attorney specializing in this field (which I did just prior to posting this), the case can be made that a card is covered by the same first amendment protection as a magazine, newspaper or website. In fact magazines and newspapers sell advertising in addition to the newspaper or magazine itself making them even more commercial than trading cards.

You never know what a judge or jury will do, but this could be a groundbreaking case for trading cards.

If that's the case, why pay the MLBPA? If they are going to claim editorial usage then they don't need to pay for using the player's likeness and yet they are. By paying for some rights and not others it would appear that they are hampering their ability to claim editorial usage. I'm not a lawyer but I'm pretty familiar with trademark/copyright issues and I don't think UD has a leg to stand on.

They might argue they need signatures for the products and doing a deal with MLBPA is the easiest way to insure cooperation.

Where's the rolling eyes icon when you need it?

 

[THECARDFATHER]

Sorry, scuba. Just playing devil's advocate and making the argument. In addition, being stupid and paying millions of dollars unnecessarily doesnt change the law or the way a court interprets it.

 

[ru4scuba]

Sorry, scuba. Just playing devil's advocate and making the argument. In addition, being stupid and paying millions of dollars unnecessarily doesnt change the law or the way a court interprets it.

Then don't go accusing me of making "invalid assumptions" and then turn around and make a huge assumption yourself. The point is that UD was paying for those licenses for the last 20 years for a reason. They needed them in order to legally produce products containing logos and player's likenesses. Only now that they were denied an MLBP license are they trying to get around it. If UD could of been saving tens of millions a year without getting licenses from the leagues, they would of been doing it already.

 

[THECARDFATHER]

Scuba, you still make a huge leap. Maybe they paid them and never challenged because that was the single biggest barrier of entry from Donruss, Press Pass and other upstarts getting into or staying in the business. Again, the fact that they were willing to pay before doesn't negate their claim that they didnt need to pay.

None of us laymen know what is going to happen. Hell, Im not sure the lawyers for MLB or Upper Deck are certain what will happen. The fact that it appears MLB lost their claim for a restraining order speaks volumes to the argument that this is not an open and shut case. If it were, the court would have shut Upper Deck down.

I personally would like to see an expert on the subject to speak to Beckett, FCB or another media site. It would be interesting to hear the relevant law, not just conjecture by collectors, dealers, distributors and even manufacturers.

 

[ru4scuba]

Scuba, you still make a huge leap. Maybe they paid them and never challenged because that was the single biggest barrier of entry from Donruss, Press Pass and other upstarts getting into or staying in the business. Again, the fact that they were willing to pay before doesn't negate their claim that they didnt need to pay.

None of us laymen know what is going to happen. Hell, Im not sure the lawyers for MLB or Upper Deck are certain what will happen. The fact that it appears MLB lost their claim for a restraining order speaks volumes to the argument that this is not an open and shut case. If it were, the court would have shut Upper Deck down.

I personally would like to see an expert on the subject to speak to Beckett, FCB or another media site. It would be interesting to hear the relevant law, not just conjecture by collectors, dealers, distributors and even manufacturers.

If my "leap" that they needed those licenses is so huge that means all the executives at Topps, Upper Deck, Donruss, Fleer, etc. have been idiots for paying hundreds of millions of dollars unnecessarily. I find it highly unlikely.

 

[THECARDFATHER]

Not being smart enough to see a loophole (until now) doesnt change the fact that the loophole exists.

If you remember, Donurss was prepared to take on MLB the same way (and use dlogos in 2008). If the owner of Donruss hadn't sold to Panini, she was going to fight it all the way.

I personally do not think Upper Deck thought this up (let's not give them credit for being that smart). I think Donruss reintroduced this argument. Upper Deck seems to be taking over where Donruss left off.

 

[THECARDFATHER]

If my "leap" that they needed those licenses is so huge that means all the executives at Topps, Upper Deck, Donruss, Fleer, etc. have been idiots for paying hundreds of millions of dollars unnecessarily. I find it highly unlikely.

As I just suggested, maybe by paying it kept all the little companies and new startups from entering the business.

Another idea: Until 1 year ago, one company had a patent on game used cards. Topps and many other companies paid them royalties on the patent. Upper Deck challenged this patent and beat the supposed owner. Now, no one pays royalties to him anymore.

This is the same situation as we see today. Companies pay royalties because they think they must. Once its proven they don't, they dont pay another penny. Ask Topps, UD, Donruss or any of the other guys if they are still paying royalties even though the patent is ruled invalid?