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Posted By: Miguel Danielson

I am an intellectual property attorney, but this is not legal advice, yada, yada.

Works published before 1923 are no longer the subject of copyright and are in the public domain. Works published between 1923 and 1963 may still be subject to copyright if they were properly renewed at the relevant times. A company like Topps may or may not have renewed their copyright registrations for their earlier sets. For things like candy and tobacco cards where the companies ultimately went out of business and nobody purchased the copyrights they held, it is unlikely that any renewals were ever filed.

Now, even if something is in the public domain, a photographic representation of that thing may still be subject to copyright. For example, if someone takes a picture of a tree, the tree is not subject to copyright, but the photograph would be. When someone takes a picture of something like a baseball card, then the copyrightable subject matter in that photograph or scan (apart from what may exist in the card itself) is pretty minimal because copyright law requires that in order to be protectable, a work must embody a "modicum of creativity." So, maybe if you crop your scans real nice and do some digital alterations, then there is some copyrightable expression there, but not much. As with many things in the world of intellectual property, what you feel comfortable doing is ultimately a matter of assessing the risks involved and deciding which ones you're comfortable enough to live with.

One final thought I have is that with regard to the Copyright Office's scans, assuming that the cards in question are pre-1923 issues, then there should be no problem with using them freely. The federal government cannot possess any copyright interest, so even if their scans might otherwise be copyrightable by a private citizen, they can have no such rights in the scans.

There are other potential intellectual property issues involved with sports card images, such as rights of publicity and trademark, though for hobbyist uses of pre-war cards I think these issues are not likely to be nearly as relevant as the copyright issues. Nevertheless, if I have any fellow IP lawyers here on the board and you're up for an academic discussion on these topics, nothing would please me more. One thing I have thought frequently about is how companies like Topps have very interestingly begun to re-establish trademark rights in terms like T206 and Allen & Ginter, which were previously abandoned because nobody had used them on actual products for many decades. For those not keeping up with the shiny stuff, Topps has recently begun to issue modern day sets that are look-a-likes of classic pre-war sets, and have adopted the names of those pre-war sets (and applied for federal trademark protection of these names).

Ahhh, if there was only such a thing as baseball card law...