MLBPA, MLB & UD License - Affects Hockey?

In following up with discussions in the UD vs. Konami thread here, thought it was better to start a separate thread that discusses the licensing specifically.

The MLBPA gave UD a license for the use of player likenesses; the MLB did not provide UD with a license to use team logos, uniforms or the MLB logo. With the rollout of Ultimate Collection and Signature Stars, MLB has stated it is stepping forward with a suit against UD for copyright infringement, on the grounds that UD did not use enough efforts to remove the MLB logos, team logos, uniform colours, etc., out of those images.

UD has shot back stating it has the right to use player images, and has MLBPA backup for its photography. As well, apparently the MLBPA has to approve the card designs before going to print.

Should be an interesting situation. Is UD in the right here? Are they pushing the envelope on copyright? Does MLB Properties have the legal right to state that ANY product with its logo or its team logos, uniforms, team colours, etc., cannot be produced without their okay?

What will the effect be with the NHL, NHLPA and its licensors? This could have MAJOR repercussions for the leagues in the future, if UD wins the case.

B.

Bruce;

You have hit the nail on the head in your post.

The MLB vs Pacific case never went to court. MLB lost in its bid for an injunction and then the parties settled.

This one can't go that route as MLB has already given Topps and exclusive, so it seems that Topps would have to approve if UD get's to use MLB's properties.

This case has some major issues in dispute. I will be following it closely.

Not sure who I want to win this one.

Brian Price

bprice said:

Bruce;

You have hit the nail on the head in your post.

The MLB vs Pacific case never went to court. MLB lost in its bid for an injunction and then the parties settled.

This one can't go that route as MLB has already given Topps and exclusive, so it seems that Topps would have to approve if UD get's to use MLB's properties.

This case has some major issues in dispute. I will be following it closely.

Not sure who I want to win this one.

Brian Price

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Is it fair to assume that if UD actually manages to win, it would set a precedent that would lead to ITG card featuring pictures which include NHL logos?

If it comes down to a law suit, it could take years to resolve.

Once a decision is rendered; however, it sets a precedent that is law.

It would not surprise me if all of the leagues (NHL, MLB, NBA and NFL) get behind this.

Should UD win, then the leagues have nothing to license other than the use of their marks on the cards, no on the images. That is very little.

This situation will change the landscape of the trading card industry, it was only a matter of time, I am sure Upper Deck will do the same thing with their basketball products.

Brian Price

bidds55 said:

Is it fair to assume that if UD actually manages to win, it would set a precedent that would lead to ITG card featuring pictures which include NHL logos?

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I was just going to say something like this. Can't wait to see what comes from this. If UD does win and ITG can use NHL Logos I will go on record and say ITG will ROCK EVEN MORE THAN IT DOES NOW:dance::giggity::dance:

As a trademark owner you have the right to control how and when your mark is displayed and by whom. Here, Upper Deck is essentially using the trademarks to increase their revenue as well as give the false and misleading impression that MLB has approved the trading cards. I know there is a "prominent disclaimer" on both the cards and the box, but a disclaimer does not absolve one of wrong doing.

I think we can all agree on the fact that a trading card featuring team logos and colors is more appealing than having them airbrushed off. Simply look back to the early years of Be A Player under Upper Deck. They airbrushed all the logos off the fronts of the jerseys in action shots, and the photos do not look right, there is just something off. By circumventing this, Upper Deck is increasing the visual appeal and in the trading card market that means additional sales. I think Dr. Price can attest first hand to the number of people that have said the lack of logos make the cards less appealing.

Because of this I think Upper Deck will have a very difficult time.

Furthermore, this case could have far reaching effects. Trading cards are not the only industry that deals with multi-level licensing issues. If the court allows Upper Deck to use marks by only getting the approval of one owner this could allow people in various industries to do the same. I simply do not see any court willing to drastically alter IP rights law.

One other point to make. Even if the trial court rules in Upper Deck's favor, I encourage everyone to wait until the case is fully litigated before taking any action in reliance upon it. A ruling does not become binding upon all courts in the United States until and if the Supreme Court rules on it. If the case only makes it to the US Court of Appeals then it will only be binding in the Circuit that decides it. It will be persuasive authority on the other Circuits, but it will not be binding.

Just ask Mr. Clarett of Ohio State and Mr. Williams of USC about the dangers of acting on a court decision that has not been fully litigated.

As far as the issue of the NHL, would we not have to assume that the licensing would need to be split as in the MLB and MLBPA with UD scenario and ITG have NHLPA licensing in order to feature player images in action?

This has supreme court written all over this. What I dont understand is what is the difference between the two entities of MLB Properties and MLBPA?

DXFlyers said:

What I dont understand is what is the difference between the two entities of MLB Properties and MLBPA?

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MLB Properties is the entity set to manage the IP rights of all the member clubs and Major League Baseball. The way it works is essentially a license to license the rights so the member clubs do not have to do it individually. This structure is actually being challenged in the Supreme Court currently in an antitrust case against the NFL.

MLBPA is in this context the same type of entity as MLB Properties in that the Players have licensed the right to the MLBPA to arrange licensing deals for the use of the Players' names and likenesses.

For every trading card you have the following rights to deal with:
1. League and Team Logos (NHL Logo, NHL Team Logo)
2. Player Name and Likeness (Photo of player and printing of name on card)
3. If an action shot, you also have to deal with any spectators that might be in the photo (Check the back of the ticket next time, there is language that allows them to use your image without compensating you).

MLB Properties was created to manage the IP rights of the League and the Member Clubs, the licensing arm of the MLBPA was created to do the same thing for the players.

EDIT - covered above...

blindros88 said:

MLB Properties is the entity set to manage the IP rights of all the member clubs and Major League Baseball. The way it works is essentially a license to license the rights so the member clubs do not have to do it individually. This structure is actually being challenged in the Supreme Court currently in an antitrust case against the NFL.

MLBPA is in this context the same type of entity as MLB Properties in that the Players have licensed the right to the MLBPA to arrange licensing deals for the use of the Players' names and likenesses.

For every trading card you have the following rights to deal with:
1. League and Team Logos (NHL Logo, NHL Team Logo)
2. Player Name and Likeness (Photo of player and printing of name on card)
3. If an action shot, you also have to deal with any spectators that might be in the photo (Check the back of the ticket next time, there is language that allows them to use your image without compensating you).

MLB Properties was created to manage the IP rights of the League and the Member Clubs, the licensing arm of the MLBPA was created to do the same thing for the players.

Click to expand...

So MLB properties is headed by Bud Selig while MLBPA is heading by their union president apparently. So in all reality, MLB properties, Bud Selig and his office should be shooting themselves in the foot on the CBA for letting MLBPA violate their license. If UD has something in writting from the MLBPA they approved all the cards etc, then they are chasing the wrong company first.

DXFlyers said:

So MLB properties is headed by Bud Selig while MLBPA is heading by their union president apparently. So in all reality, MLB properties, Bud Selig and his office should be shooting themselves in the foot on the CBA for letting MLBPA violate their license. If UD has something in writting from the MLBPA they approved all the cards etc, then they are chasing the wrong company first.

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MLB Properties is its own entity headed by someone other than Bud I believe. It merely holds the right to license the use of MLB and Member Clubs IP rights (trademarks and copyrights) to third parties like trading card companies, clothing manufacturers, etc.

MLBPA decided not to create a separate entity to handle those matters, most likely because the right to license the players' likenesses is in the Union agreement.

As for the approval process, that is likely to be irrelevant due to the multiple rights in each photo. Just because the MLBPA approved of the photo of the player does not mean they have the power or authority to approve of the use of the rest of the rights within that photo. Dr. Price can chime in more on this subject as I am sure he has much more experience in the photo approval process than I do.

blindros88 said:

MLB Properties is the entity set to manage the IP rights of all the member clubs and Major League Baseball. The way it works is essentially a license to license the rights so the member clubs do not have to do it individually. This structure is actually being challenged in the Supreme Court currently in an antitrust case against the NFL.

MLBPA is in this context the same type of entity as MLB Properties in that the Players have licensed the right to the MLBPA to arrange licensing deals for the use of the Players' names and likenesses.

For every trading card you have the following rights to deal with:
1. League and Team Logos (NHL Logo, NHL Team Logo)
2. Player Name and Likeness (Photo of player and printing of name on card)
3. If an action shot, you also have to deal with any spectators that might be in the photo (Check the back of the ticket next time, there is language that allows them to use your image without compensating you).

MLB Properties was created to manage the IP rights of the League and the Member Clubs, the licensing arm of the MLBPA was created to do the same thing for the players.

Click to expand...

Is that the reason that so many card sets just have the player over a superimposed generic background?

It is very possible that on the approval forms to cover their backside that the MLBPA put some type of language saying that they are not approving the use of logos but leaving that up to UD.

So the images are approved with that type of disclaimer and UD can do what they want.

That's just the way I think I could be done to get MLBPA off the hook but allowing UD to do it. That could be their plan and test the waters of MLB's rights.

I wonder if MLB is going to court today to try and stop the release of 2010 UD Series I baseball?

Perhaps due to the result of the Pacific case more than decade ago, they won't go down this route but we will see.

If they try to injoin UD from releasing the product and lose, doesn't mean a law suit won't be filed. Injunctions are difficult to get.

Interesting times.

Brian Price

NFL vs American Needle

Here is a link to the above mentioned NFL court case that the Supreme Court is hearing - you can read below as to what American Needle is charging the NFL with but this is going to have major implications for all professional sports leagues and how they conduct this type of business.

http://www.forbes.com/2010/01/06/american-needle-supreme-court-business-sports-nfl.html


******From Article**********
At its core, the case is about whether the 32-team NFL can legally operate as a single business entity, as it claims, or whether it must be considered 32 separate entities, as American Needle argues, which would presumably give the company the right to ink deals with individual clubs. Players' unions across the sports landscape, along with their natural allies in the press, are sounding the alarm. If the NFL is legally considered a single entity rather than a group of 32 competitors, their argument goes:

--It will stand as a legal monopoly powerful enough to impose a salary structure that reduces player pay and movement.

-- Merchandise prices will skyrocket as the league monopolizes the market.

--The precedent would spread beyond the NFL to other leagues--just watch the baseball commissioners office force the Yankees to sell their YES network as MLB takes control of broadcasting.
***************************************

My distributor told me today he was told by Upper Deck to not release anymore 2010 upper deck series 1 baseball til he hears back from them

DICESARE said:

My distributor told me today he was told by Upper Deck to not release anymore 2010 upper deck series 1 baseball til he hears back from them

Click to expand...

Plot gets better....

Some of the product was shipped out last Thursday & Friday.i asked him if he wanted me to hold up listing til he hears back from them.He said to go ahead & list it.

Thanks for the interesting and informative thread people and especially "blindros88" who sounds like an IP attorney...

RGM81 said:

Is that the reason that so many card sets just have the player over a superimposed generic background?

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No, not really. The right to publicity as it is referred to is a matter of state law in the US so that is why you see the disclaimer on the tickets. If you chose to attend the game then the club and league can use your photo if you happen be close enough to make it into a picture, etc. I think the reason that you see so many player only cards today is the fact that the technology exists to do it. With the progression of programs like photoshop the card companies have been able to isolate players faster and more cost effectively. It also allows for a focus on the individual player featured on the card. Plus, once they create the cut away once it can be used over and over again effectively lowering the cost of creating it.