When you look back over the last two years of the industry, the time has been highlighted by situations that do not have anything to do with the cards that eventually end up in the hands of the consumers. Rather than 2009-2011 being remembered for the products, it has been peppered with very visual lawsuits that have changed the game, usually for the worse. Dont get me wrong, many of these lawsuits have been warranted by the perpetrators of the wrongdoings, but in just about every one of them, things have gotten much worse not better.
Let’s face it, 2009 was not a banner year for Upper Deck. Extremely short sighted and morally reprehensible actions led to the not-so-gradual downfall of one of the industry’s titans, and it was all at the hands of lawyers rather than the outcomes of the actions themselves. First, we saw UD lose the baseball license due to an exclusive Topps deal with MLB, and rather than take it like men, they tried to backdoor two sets post-license without removing any logos. Because the other leagues did not want unlicensed companies to start producing similarly conceived cards without paying for usage, pressure was put on Upper Deck to settle in a VERY damaging way. Again, they had made their bed without thinking about consequences, and now they had to sleep in it. Seemingly like clockwork, details emerged about the production of counterfeit yu-gi-oh cards, tied directly to infamous scheister Richard McWilliam. More damage was done, and eventually UD lost just about everything, except for a tiny win here and there.
Regardless of how you feel about Upper Deck’s taking the low road on many different things, its obvious that things havent been the same in the hobby since. The 2009 UD Football calendar was one of the greatest in hobby history due to unparalleled design work and close to 10 products with on card elements from both rookies and veterans. Since 2009, nothing has even come within a zip code of that level of success, although Topps is probably going to get there eventually as long as the license stays with them after next year. Panini has squandered a huge opportunity with poor production by refusing to get with the trends, and as a result they have started to slip even among their most loyal of customers.
As of last week, there has been a number of new lawsuits, including more involving Upper Deck. One has to believe that Upper Deck doesnt have much gas left in the tank if they cant come out ahead on the two suits brought against them. The first suit is with internet retail giant Blowout Cards.com, a site that many collectors use to buy their wax from on a frequent basis. As I have said before, I think UD has made major mistakes by limiting the distribution of their products, and Blowout has every right to be angry about the stupid policies that make zero sense for a company that looks to be on its last legs in terms of funding, but precedence is not with them.
The second suit sounds hilarious in the fact that UD seems to be suing itself. Although this is only partially true, it is a very real issue stemming from the Yu-Gi-Oh disaster mentioned above. Basically, because of the actions of the domestic Upper Deck interests, the international part of the company greatly suffered by also losing licensing for the cards that kept them afloat financially. According to the filing, Upper Deck International believed that their multi-national license to sell Yu-gi-oh would remain, as long as Upper Deck America settled and stopped the counterfeit production. This didnt happen, and if they can prove damages, they might have a shot on their million dollar stab at McWilliam.
Lastly, we also see that Topps has sued Leaf over use of their legally obtained cards in solicitation for their products. Leaf is pretty much gum on the shoe of a company like Topps, especially in terms of both market share and consumer loyalty, but Brian Gray is definitely using huge power plays like his Ichiro exclusive to close the gap. Topps is most likely going to come away with a small victory here, especially when they own the rights to the images displayed on the cards. Brian can just as easily say what the cards are without pictures because of iconic status, but it is a downgrade no doubt.
In the end, the lawyers seem to be busy in this respect, and I will be interested to see how much the hobby’s face will change as a result of this jockeying.
again, you know I love your site Gellman..but sometimes you do not see nor have the full picture
True, but if I dont have the full picture, no casual person out there does either. Its a situation where that will majorly hurt those involved. Education is the answer, but no one is able or willing to give it.
Great article. I am very interested in this information and I will, of course, be affected by the outcomes.
My son is an attorney (corporate law and a good one) and I have been in business for over 25 years. Although I am interested in these and past lawsuits, having all related factual information on this matter will not bring us back to the way things were when Upper Deck had rights to produce NBA, NFL and MLB products. And, if all true and factual information were provided by all parties involved, it would not take away/prevent any hurt to collectors and retailers who love these great products.
Because Out of Court Settlements are not documented for public record, nor have the merits of these cases been proven, anything said or written by Upper Deck or the plaintiffs, as it pertains to such cases, would be a bias opinion. Settlements Out of Court are not an admission of wrong doing, but occur when both parties agree to terms and both determine that further action is not in the best interest of either party. And, both parties do not want the terms to be disclosed.
Lawsuits are often wars of attrition, where both parties decide to accept the settlement, because both parties determine it is not financial benificial to continue.
I will continue to read every word of print on this subject. I love Upper Deck products. All I know is, I want more.
The Topps/Leaf lawsuit is going to be interesting to see how it plays out. Being a graphic designer I have worked with copyrights, I have copyrighted designs and I have worked with copyrighted images and graphics both in personal projects as well as “Work for hire” projects. I actually just did a study and research paper recently on the copyright laws in comparison to public-domain and fair use laws in regards to artistic work.
The problem that Topps will have is that Leaf is not advertising that they created the Topps product nor are they including the name Topps in any of the pre-sales information/copy. They even clearly state “Graded” and “Graded/Slabbed” and do not list any corporate names. Yes they do include images of the Topps cards (which may be a sticking point for Topps) but they purchased these cards on the secondary-market and as an end-user have the legal right to sell them as long as the product is represented properly. Think of this as you selling a Topps card on eBay, you can list Topps in the title and description and you can include an image of the card as long as you do not attempt to make claim to creating the design or create a new product and list it as a Topps creation.
Also going against Topps is the inclusion of other designers products (showing that Leaf has considered other creations too), again these are after-market purchases and Leaf and Brian Gray are leagally allowed to include them in their product as long as they do not make claim to creating the cards.
The only thing that may come out of this, on Topps side, would be the requirement that Leaf remove any images of Topps product from their sales materials but I would be floored if a judge issues an order halting Leaf from selling the product or removing Topps cards from the release. If anything harsher were to happen it would set precident that potentially could handcuff dealers, retailers and even people selling items on eBay or at auction. We would be at the mercy of Topps’ legal team, which could get as bad as an Orwellian society forcing us to request permission to list a Topps product for sale.
As long as Leaf follows copyright laws I hope that this lawsuit just goes away.