O/T: Topps sues Leaf over Mantle Card

[Cerberus]

Hot off the presses at TMZ:


BASEBALL CARD WAR Topps Sues Leaf Over Mickey Mantle Card

One of the GREATEST YANKEES OF ALL-TIME has been thrust into the middle of a showdown between two HUGE baseball card companies ... TMZ has learned.

The Topps Company has filed a lawsuit in NY against Leaf Trading Cards -- claiming Leaf is using ICONIC Topps baseball cards -- including the 1952 Topps Mickey Mantle rookie card -- to promote a new Leaf product.

It's sorta weird -- Leaf has a new line of cards called "2011 Best of Baseball" ... and in every pack, collectors will get 1 new, original Leaf card and 1 bonus card which, depending on your luck, could be a pre-1970 card featuring a Hall-of-Famer.

According to the lawsuit, Leaf put together a promotional ad (above) featuring some of the bonus cards -- which include the Mantle card, a 1980 Topps Rickey Henderson, a 1972 Topps Carlton Fisk card and more.

Topps claims it had warned Leaf about a similar incident in 2010 ... but now, Topps' patience has run out ... and it wants Leaf to pay up. Topps is suing for unspecified damages AND it wants a judge to force Leaf to STOP using Topps cards to promote Leaf products.

A rep for Leaf tells TMZ, "Leaf intends to vigorously defend itself against the allegations in this lawsuit. We anticipate a just result of this matter through the legal process."

[drc]

No reports from TMZ please

[novakjr]

I've seen the report other places as well...Anyways, I'd kinda like to see how this works out.. Topps has a point, but I think they're being b!tch~s about this...YES, I understand that they own the rights to all things having to do with some of these players. Mantle included. But Leaf isn't doing anything wrong by inserting a '52 Mantle either, and should have every right to display what would be considered prizes... I don't see Topps running around suing auction houses, because people are auctioning these cards, and using them to advertise their auctions.. What Leaf is doing, at it's core, really isn't any different than that.. Basically promoting the "Lottery" that is the modern card industry..

[Bosox Blair]

Hypocrites - Topps uses ATT cards they never issued to promote Topps...like T206 "Buybacks"...

Cheers,
Blair

[D. Bergin]

Seems like an odd response from Topps.

Leaf would actually be promoting Topps cards, just as much as their own cards.

Looks like free publicity from a rival company. A win/win for Topps.

[botn]

My prediction is lawyers from both sides win big. Way to go corporate America!!!!!!!!

[Brendan]

Originally Posted by Bosox Blair

Hypocrites - Topps uses ATT cards they never issued to promote Topps...like T206 "Buybacks"...

Cheers,
Blair

They try and make you think that they're all there is. I'm sure the "T" in T206 stands for Topps, right?

Originally Posted by D. Bergin

Seems like an odd response from Topps.

Leaf would actually be promoting Topps cards, just as much as their own cards.

Looks like free publicity from a rival company. A win/win for Topps.

Leaf is a competitor. As long as they can make it harder for Leaf, they'll do it even at the expense of themselves.

[Matthew H]

Originally Posted by Brendan

They try and make you think that they're all there is. I'm sure the "T" in T206 stands for Topps, right?



Leaf is a competitor. As long as they can make it harder for Leaf, they'll do it even at the expense of themselves.

Thats funny... I've seen t206 on ebay listed as 1909 Topps a couple times before.

[Brianruns10]

Originally Posted by Bosox Blair

Hypocrites - Topps uses ATT cards they never issued to promote Topps...like T206 "Buybacks"...

Cheers,
Blair

Yes, but the t206 cards predate copyright, and so they exist in the public domain. Topps or anyone else can use them as promotional giveaways or however they please. Leaf, however, is using a copyrighted image/artwork for their own gain, i.e. to sell more of their product with the allure of winning the card. This isn't even a case of fair use, since they have not altered the original, nor are they using for educational purposes. They are profiting from something owned by another company, which is illegal unless they pay a licensing fee or royalty to Topps. I've worked extensively in documentary film, and dealt constantly with licensing images and footage for films. I've learned all the loopholes, and in this case, it ain't even close. Leaf absolutely violated Topp's copyright, regardless if they are the big guy on the block harassing the little guy, it doesn't matter. They are absolutely in the right, and I hope they win.

[steve B]

Originally Posted by Brianruns10

Yes, but the t206 cards predate copyright, and so they exist in the public domain. Topps or anyone else can use them as promotional giveaways or however they please. Leaf, however, is using a copyrighted image/artwork for their own gain, i.e. to sell more of their product with the allure of winning the card. This isn't even a case of fair use, since they have not altered the original, nor are they using for educational purposes. They are profiting from something owned by another company, which is illegal unless they pay a licensing fee or royalty to Topps. I've worked extensively in documentary film, and dealt constantly with licensing images and footage for films. I've learned all the loopholes, and in this case, it ain't even close. Leaf absolutely violated Topp's copyright, regardless if they are the big guy on the block harassing the little guy, it doesn't matter. They are absolutely in the right, and I hope they win.

So it's a copyright violation to use a copyrighted work as a contest prize?

I could see it if they reprinted the card, but it's essentially an original being offered as a lottery or raffle prize. (NY state fought the cards as lottery battle and won, which is why the new packs have the insert ratios printed on them)

If that's the reality of things these days I suppose that's how it is, but then every group offering prizes in a drawing could be in trouble for promoting it.

Since the first copyright act in th US was 1790 T206s were potentially issued under copyright. I'm not sure if a notice was required then, but if it was then the lack of notice may have put them in the public domain since new. The origianal photos were probably copyrighted by the photographers and licensed by ATC.

Hmmmm.... There's an interesting avenue to do a bit of research on. Maybe the plank was pulled over a licensing issue?

Steve B

[vintagetoppsguy]

Originally Posted by Brianruns10

I've worked extensively in documentary film, and dealt constantly with licensing images and footage for films. I've learned all the loopholes, and in this case, it ain't even close. Leaf absolutely violated Topp's copyright...

I know absolutely nothing about copyright laws, but I think you are wrong and I think Topps loses their case.

It's a prize, there's not copyright infringement. They're not reproducing the card.

Didn't one of the companies insert money (I think it was $100 bills) into packs a few years ago? If I'm correct, then by your logic the card copy is guilty of counterfeiting.

[Rich Klein]

However; they fully complied with the law. There was a maximum amount of bills they could insert and they put in exactly that many bills, no more, no less into those packs.

[vintagetoppsguy]

The cards are inserted into packs as prizes. Beckett used to give away cards as prizes in their monthly drawings (and maybe they still do, IDK). Why didn't the card companies sue Beckett?

[steve B]

Originally Posted by vintagetoppsguy

The cards are inserted into packs as prizes. Beckett used to give away cards as prizes in their monthly drawings (and maybe they still do, IDK). Why didn't the card companies sue Beckett?

Because the PR was worth more than they could win.


Steve B
Cynical? Not me!

[Tabe]

Originally Posted by steve B

Since the first copyright act in th US was 1790 T206s were potentially issued under copyright. I'm not sure if a notice was required then, but if it was then the lack of notice may have put them in the public domain since new. The origianal photos were probably copyrighted by the photographers and licensed by ATC.

It's murky but copyright on the T-206s most likely expired in 2004:

http://www.copyright.gov/help/faq/faq-duration.html

Tabe

[Brianruns10]

Originally Posted by vintagetoppsguy

I know absolutely nothing about copyright laws, but I think you are wrong.

Airtight argument. Have you offered your services to Leaf?

Now, regarding Steve B's quote, I should correct myself, as I vaguely worded it. What I should have written was that copyright has expired. Copyrighted works made before 1923 are now public domain as the set period of copyright has now expired. The 1952 Topps cards, falling after that period, but prior to 1978 are copyrighted until 2047.

And while you all make a valid point, asking what is the harm of offering it as a prize, you miss the the real issue here, which is that the Topps card, and not any card, but arguably their most ICONIC card, is being used by a competitor, on it's product's packaging, as promotion and inducement to buy the product. It is using a competitor's copyrighted image to profit against that competitor, without paying royalties or licensing fees. You all see an innocent, "Let's offer a prize," but since when are companies innocent or naive? To me this is a blatant, calculated attempt to move product.

Think of it in this way. Supposed a third rate soft drink maker started offering the chance to win free Coca Cola for a year...you need only buy their drink! And to promote this contest you use Coca-Cola's trademarked logo to promote the contest. Would you really think that isn't a cynical ploy, and a blatant abuse of a protected, copyrighted logo? Why is the use of Topp's most iconic work of arts, one of the most iconic images in Americana, any different?

If the card were being raffled for charity, that is something different. Not for profit purposes are subject to different standards and practices. But were talking for profit here, and the profit of a direct competitor.

I've worked on many history films, which are ostensibly made for a good purpose: to educated, inform, entertain. And because they air on PBS, they are essentially free to the public. Yet, we still have to pay to use certain images, because there are rights and privileges that come with ownership of those images. And depending on how we use that image, we have to pay more. If we want to use the image in trailers for the film, or on the DVD packaging, we have to pay a lot more, because the image is being used as part of promotion of the product.

Same for Topps and Leaf. Leaf is profiting from sales of a product whose buyers are induced by the hope of winning a Topps Mickey Mantle, which is prominently displayed. Forget, for a moment, that Topps is the big boy on the block. Don't they have the right, because they produced the image to begin with, and own it, to share in the profits being generated by the use of that image to promote the item?

That is the whole point of copyright. Disagree all you want, continue to believe Leaf is just being awe shucks nice by offering this nifty card, but as someone with years of experience dealing with copyright issues, I stand by my argument that Leaf has violated Topps's ownership rights, and I'll say again, I hope they win their suit.

[steve B]

Interesting points.

I do think it's a cynical ploy by Leaf, as are most advertising efforts.
(Including PBS, they only seem to show the hendrix at woodstock during the fundraising. I love the regular shows too, but The most interesting ones are interrupted with constant appeals. )

Why didn't Topps sue Treat when they did the same thing? Maybe because treat buys and repackages their leftovers?

It's a tough call to me, Topps absolutely has the right to profit from their product and the image of the card. And I'm sure the Mantle estate has rights as well. To me that's a bit more vague, he was a public figure, and I've found the whole "right of publicity" thing confusing since they started pushing it, especially for deceased celebrities.

But I'm torn over how if a case like this stands anyone could offer a really good prize in a for profit contest and properly promote it in any way. There's the path to a world of silliness that makes PC stuff seem sane.

A local radio station was giving away tickets to ----Lest I get in trouble--- A major sporting event involving pro football. Some would say it was THE major pro football event each year.
And that's how they had to describe it in ads after a day or two when they got the cease and desist letter. Win tickets to the big game!
Silly right?
Silly but true.

So if I was going to offer a lifetime supply of Coca cola as a prize from say my tiny brand of pricy rootbeer. Just how could I advertise that without naming the prize?

I did find one bit on the Government site about fair use.
Apparently the owner of an original work can display it at the point of sale and that's a fair use-Like a card store or art gallery. And that may be what trips up Leaf. Obviously the 52 Mantle isn't in every place the boxes portray it.

The whole thing does make me wonder about the other cards Topps has used images of. T206 and T205 are obviously expired. And they bought Bowman so those are ok.
But the others?
1932 american caramels
34 Goudeys
Delongs
35 diamond stars
41 double play
39 playball
Exhibit supply (borderline- they use the company name but picture a supposed 1921 card)

All potentially still under copyright. I'm sure some lapsed, and probably a couple are owned by Topps. But I'm fairly sure the vestiges of ESCO remain in some form and Aren't owned by Topps.

Steve B

[teetwoohsix]

I bet Leaf is basing their right to do this on actual ownership of the physical card that they include in the packages- meaning, if they bought and own each Mantle card that they include in their promotion, the card is theirs to do what they want with. Just an uneducated guess.

But I do think Brianruns10 is probably right about the legality of this.

Sincerely, Clayton

[Brianruns10]

Steve B,

To answer your speculation about the cards you mentioned, it'd have to be a case by case basis, and one I'm sure Topps investigated in their legal department, but given the time frame, I'd say the odds are good those cards are public domain as well, for several reasons.

As I said, anything before 1923 is public domain. However, anything copyrighted prior to revised legislation being passed in 1978 granted the rights holders a 28 year term, which could be extended to 56 if the owner applied for an extension. After 1978, when the period of ownership was modified to the current life-of-the-author-plus-70-years (or 120 years from creation if it was a work for hire, like a baseball card), copyright holders prior to 1978 STILL had to apply for the new extension, or their works would go public domain on schedule.

This means that unless someone thought to file the paperwork, many of the cards of the 1930s and 1940s went public domain by the 1960s-1980s. And I'd bet most if not all DID go public domain because there was no individual to apply for an extension, since they were works for hire, and the companies that created the works either didn't exist, or did not regard the cards to be of any further value to warrant the hassle and legal fees of filing for a copyright extension (recall this was the time when 52 Topps, indeed nearly all baseballs cards were being sold for a few dollars or in Christmas Rack packs...they were generally not held to be very valuable, to the great benefit of those of us who SAVED our cards).

This is why, in my field, I'm frequently able to use educational and industrial films free of charge without royalties, because their owners did not bother to apply for an extension of the copyright, and they lapsed into public domain. As did the classic baseball cards of the 40s.

And as for the rights of the figures themselves...that gets a little murky. On the one hand there is the issue of privacy and control over one's image, but there is also a principle in privacy relating to famous people, namely, "How did you obtain your fame?" And in cases where people thrust themselves into the spotlight by actively pursuing public roles (politicians, actors, sports figures), they have less claim to rights over the use of their image because they are public figures. It's why the tabloid rags are able to run paparazzi photos of unknowing celebs, because since they actively sought the public sphere, they have less entitlement to a private one.

[steve B]

I was thinking pretty much the same, all are probably PD because nobody cared to file. For some reason I'm thinking the goudey rights were bought by another company? and they in turn may have bought some of the others back in the 30's. Maybe Topps or Bowman? Both were starting to get big around the time Goudey was winding down.

It would be amusing if any of them were still under copyright and Topps hadn't checked.

One thing I find interesting is that Treat used a 52 Mantle as a prize, and used the image on the boxes of junk that the prize might have been in.
And there are/were a few dealers using a 52 mantle pretty much as a logo -It was in the ads, but not advertised. Both those uses slid past unpunished, although treat may have licensed it.

I've found the new copyright extension frustrating, there's a lot of great stuff out there that got extended but has little to no commercial value so it's not released and likely won't be in my lifetime. There's also stuff I personally own that I don't technically have any rights to, but I own the only copy. Unfortunately nothing good enough that it's worth paying to figure out how to obtain rights. Like footage of the 72 olympic gymnastics taken by one of the competitors.

I've felt for some time that if a comercial entity won't market a copyrighted work like a movie or tv show or music it should be made public domain after a reasonable time -like maybe 20 years of no publicaton or broadcast instead of 95 years from publication. - Of course the flip side of that argument is groups like the Hendrix estate who do a fantastic job of releasing stuff that was only previously available as bootleg records, and truly making it a better product with proper attributions etc.

Steve B

[vintagetoppsguy]

Originally Posted by steve B

One thing I find interesting is that Treat used a 52 Mantle as a prize, and used the image on the boxes of junk that the prize might have been in.

Similar prizes/give-a-ways have been done over the years - like these chase boxes:

http://www.ebay.com/itm/1952-Topps-W...item1c1c5212b3

or

http://www.ebay.com/itm/5-1952-Topps...item5ae21c38ff

Look whose picture is right there on top of the box. No way Topps wins their lawsuit.

[Brianruns10]

Originally Posted by vintagetoppsguy

Similar prizes/give-a-ways have been done over the years - like these chase boxes:

http://www.ebay.com/itm/1952-Topps-W...item1c1c5212b3

or

http://www.ebay.com/itm/5-1952-Topps...item5ae21c38ff

Look whose picture is right there on top of the box. No way Topps wins their lawsuit.

On first appraisal your analogy makes sense, but in reality it's a false one, because it assumes all these examples originated under identical circumstances. Again, the issue isn't the use of the image. The issue is obtaining PERMISSION to use the image. I'd guarantee Chase had to obtain permission, and pay a fee or royalty to use Topps' property on the cover art of their item.

Leaf is being sued because they did NOT obtain permission first to use this copyrighted image. In fact, they did something similar before, to which Topps sent them a cease-and-desist letter. They were warned once, and did it again.

What it comes to is this: Topps owns the copyright. Leaf used it without permission, and they've repeatedly violated copyright, despite a prior warning.

Topps has a VERY STRONG case. I'll be willing to bet that, in the end, Leaf will settle. This is a very common tactic, as crummy as it is. A company gets away with using copyrighted work, makes their profit, and pays a quick settlement, which they are able to absorb because they made more than enough to cover the loss. It's why corporations steal other people's intellectual property all the time...because they can afford to profit NOW and pay a settlement later out of those profits, rather than pay more in the long run through licensing and royalties to the originator.