Monday, February 15, 2010

The MLB Lawsuit Against Upper Deck Takes A Turn

All joking aside, April 19th is going to be a tense day around the hobby. On that day, I probably wont be paying attention to hobby news due to my wife's pending delivery, but that wont stop MLB and UD from going to court to settle the lawsuit filed over Ultimate Collection and other products. According to SCD's review of the UD court documents, Upper Deck will be arguing their case to get the lawsuit thrown out based on a number of interesting arguments. However, that isnt the most important thing.

In a twist, Upper Deck requested that the ruling and damages phase be separate, much to MLB's chagrin. What this will usually account for is time for the company to seek bankruptcy protection if the ruling is against them, or just going out of business altogether to prevent easy collection of any money. If UD is deemed to be in violation, its pretty much over for them, bottom line. With the Konami lawsuit and the possible damages from this suit, there will be too much money to account for without someone else buying the company and doing a Panini style takeover. In addition, UD has planned a huge UDA sale for that time, which only signifies more of the same.

Although I do think that UD has some compelling arguments to avoid a huge suit, im not sure why they took the risk with the products. Its just a bad idea to put yourself in that kind of situation, especially after the big hit from Konami. Granted, im sure most of the cards were already produced by the time the Konami lawsuit was filed, but that still means you need to take heed of warnings before throwing caution to the wind.

Also, im not sure why is MLBP taking the argument of "No one can tell the difference between licensed and unlicensed." No one is that fucking stupid! We all know about UD's lack of a license, even people who are just casual collectors! Know why I know that? Because it says it three times every pack and box we open! Im actually pretty glad someone at MLBP thought this was a good way to go, because it leaves the door open for a nasty comeback.

Im sure that this is going to be a landmark case in the hobby, regardless of outcome. If it goes one way, airbrushing logos is done. If it goes another way, UD is gone. I think everyone in the hobby would like to see airbrushing go the way of the dodo, but there is also a growing contingent of people who want to see the other outcome now as well. Although I agree that the shady ways of the top UD brass are reprehensible, I dont think its a good idea to chop off an arm of an already struggling industry. Regardless of how you feel about the past of UD's business ethics, having one less choice around will not be a good idea. Trust me on that and take a look at Triple Threads one more time to see if thats what you want to buy from now on. *SHUDDER*

I will say that the hobby will outlive the industry by decades, but I dont think its a good idea to expedite the process. Considering that many of the people in the industry are still trying to recapture the youth of days gone past, despite evidence that kids have moved on, I think we are in trouble for the future.


  1. I don't think this will end well for UD! I don't think anyone would want to be the firm trying to defend UD on this type of issue! Being in business 20 years says a lot about a company and just 'throwing caution to the wind' on the Ultimate release, was just not smart! I'd like to see some opinions from those in the copyright/trademark legal industry on what they think will be the outcome!

  2. I think the angle that UD is taking is a pretty good one. There are lots of entities that use MLB uniforms without a license, including many newspapers and sports sites. Why are they different?

  3. I've said it once and I'll say it again if UD wins this is a win for the other card companies as well. Exclusive deals be damned just don't use team names and logos and you can put out a card set with out airbrushing. That means that UD's hockey franchise is gone. Maybe I'll get to put together a topps football set after all. I find it funny that UD is still bragging about it's license with the NFL kinda like Topps does with it's license with MLB.

    The card scape is ever changing I mean Fleer use to be owned by Marvel, Fleer owned Panini, now UD owns the Fleer name and Panini is one of the last big 3 card companies and owns the Donruss name.
    I have to say this should be interesting either way.

  4. "We all know about UD's lack of a license, even people who are just casual collectors! Know why I know that? Because it says it three times every pack and box we open!"

    Yes, but what about the casual collector who mightn't buy packs or boxes, but who might buy the odd single online 6 months down the track? While many collectors may read blogs and be aware of this, not all collectors read blogs or card websites regularly.

    Using licensed imagaes which you don't have the right to use and then saying it isn't officially licensed, isn't a defense to illegally using trademarked/copyrighted material.

    As for newspapers, there are at least 2 aspects to it. Firstly, it is MLB choice as to whether they chose to proscute the Newspapers for violating their trademarks. Just because they choose not to proscute the newspapers, that doesn't give Upper Douche the right to violate their trademarks. Secondly there is the nature of the violation. The logos are only an extremely small percentage of the newspapers and in most cases are not a significant selling point. With Baseball cards however the logos are a very significant part of the card and by their very nature are big selling point for the cards - airbrushed cards tend not to sell as well as non-airbrushed cards. As such I doubt the newspaper argument will hold much water, though I could be wrong.

    As each day goes buy I'm more and more inclined to hope that this spells the end of Upper Douche because of the extreme contempt they have shown the collecting community over the last 20 years, even with their pandering to the egos of some.

  5. Yes, but what about the casual collector who mightn't buy packs or boxes, but who might buy the odd single online 6 months down the track? While many collectors may read blogs and be aware of this, not all collectors read blogs or card websites regularly.

    Its also on the cards from what I remember.

  6. If so, is it visible on the front so that someone buying it on the internet can see it?

    Regardless, as noted above it still isn't a defence to copyright/trademark infringement.

  7. If you are buying on the internet, then your point that not everyone is on the internet community comes into it. Plus, it is not UD's responsibility of a seller scans front or back.

    Regardless, as noted above there is some defense to it because of their decision to attempt this coup. Otherwise, if there were no defense, they wouldnt have tried producing the way they did.

  8. Plus, jeff over at IAJC posted this from a legal perspective in response to your guesses at law. He knows his shit.

    Taking a picture of someone that has a logo or trademark on them is not such a clear cut violation. My statement was more of a prediction. And yes, copyright law is very different.

    Australia has fair dealing which is much more limited to the US version of Fair Use.

    The US system is a 4 part balancing test which is all subjective in nature. As a lawyer, i can tell you that if a judge wants to stick it to MLB then they can.

    Where UD has a leg up is that they are licensed by MLBPA. Donruss was not.

  9. I can see where you are coming from Gellman! What it may really come down to is who owns the 'rights' to sell merchandise of MLB! Is it MLB properties or is it MLB players association? Maybe they both fall under MLB! At the same time, MLB properties signed an exclusive baseball card agreement with topps! I guess it will be up to the judge ultimatley on whether which holds more weight, who ultimatly owns the 'rights' of the merchandise properties and the exclusive baseball card contract signed between topps and MLB properties! Both of these issues hold quite a bit of weight to me!

  10. Comments above about newpapers made no sense. Newspapers and other news media do not need a license to report the news. You also can take a picture, paint a picture depicting MLB logos and/or a person's image without license or permission. The problem comes when you make multiple copies/ print cards......Jay McCracken