Death and Taxes and Baseball Card Litigation [Part III, 1986-1998]

Author’s Note: This is the third in a multi-part series that explores the legal backstories that have shaped (and continue to shape) the baseball card industry.

You may recall that Fleer and Donruss entered the baseball card market in 1981 after a Pennsylvania district court found that Topps and the Major League Baseball Players Association (“MLBPA”) had illegally restrained trade in the baseball card market. The court voided Topps’ player contract exclusivity clause and the MLBPA was ordered to enter into at least one additional licensing agreement “to market a pocket-size baseball card product, to be sold alone or in combination with a low-cost premium.” This freewheeling baseball card market was short-lived, however, once the Court of Appeals for the Second Circuit reversed the Pennsylvania district court’s order on August 25, 1981 and held the exclusive rights in Topps’ player contracts were legal and enforceable.

Ultimately victorious, Topps filed separate matters in Delaware (seeking to disgorge Fleer of its 1981 profits) and New York (seeking to recover Fleer’s profits for 1982/1983 claiming that Fleer’s team logo sticker was a “sham product”). Both cases were settled on confidential terms, though with a provision that allowed Fleer to continue selling baseball cards with team logo stickers.

The MLBPA Turns the Screws on Topps

Despite settlement between Topps and Fleer in the Delaware and New York matters, the case continued as to the counterclaim by the MLBPA against Topps, which the court astutely observed had likely been filed “in order to exert some pressure on Topps to abandon or at least modify the breadth of its interpretation of its player contracts.” Specifically, the MLBPA sought declaration that the word “alone” in Topps’ contracts did not include “low-cost non-confectionary items like Fleer’s team logo sticker.”

Marvin Miller, however, had admitted under oath in the prior Pennsylvania matter that Topps’ rights would be infringed by the sale of cards with a “completely valueless item” and that the MLBPA would have denied any proposal for baseball cards to be sold with a “trivial product.” Additionally, the court took issue with the absence of evidence regarding how much it cost to produce the stickers or “the extent, if any, to which the sticker motivates purchases” of Fleer wax packs. Topps argued the only way for Fleer to avoid an infringement claim would be to “make sure that the production cost of the [logo sticker] at least equal[ed] the production cost of the cards in the package.”

(L) 1982 Fleer logo sticker, (C) 1984 Fleer logo sticker front, (R) 1984 Fleer logo sticker back

However, the settlement of the underlying case between Topps and Fleer had altered the nature of the contract issue that the MLBPA wished to litigate. Although the precise terms were confidential, the settlement agreement required Fleer to increase the production cost of the logo sticker compared to the cost of the cards in each pack and specified that the logo sticker needed to be featured prominently on packaging and advertisement for the product.

Because Topps was satisfied that Fleer’s logo stickers no longer infringed on their rights to market cards alone, the court held that the MLBPA was seeking remedy for a package of cards (containing a “sham” sticker) that was no longer being marketed and that the MLBPA’s claim was nonjusticiable—it simply did not present an active controversy over which the court could preside. Accordingly, the matter was dismissed on August 25, 1986.

Turnabout is Fair Play

Separate litigation continued between Topps and MLBPA in New York. There, Topps alleged that the MLBPA had instigated a group player boycott; had attempted to monopolize Major League Baseball players’ publicity rights in violation of the Sherman Act; and had tortiously interfered with Topps contractual relationships with the players.

The compensation Topps offered for player contracts had remained unchanged since 1975—players received $5 upon signing the initial contract and received a $250 advance against his pro rata share of a royalty pool for every season he was a member of a major league club (and Topps used his picture on a card). All-Star pitcher Jim Kern described the deal with Topps rather pithily, “you get $250 from Topps, hell or high water, if your face is on a card.”

Marvin Miller had repeatedly attempted to negotiate better terms, but Topps ignored all demands—mainly because Topps’ individual contracting system left the MLBPA with little bargaining power. In fact, Topps had offered a lower royalty rate for exclusive rights than Fleer and Donruss had for non-exclusive rights prior to the 1982 season.

In an effort to increase their bargaining power, the board recommended that no player enter into or renew an agreement with Topps. Executive board member Buck Martinez acknowledged the MLBPA “simply wanted to negotiate a new contract with Topps.” The matter came to a head in January 1986, when Miller and Don Fehr distributed a memo that declared “the Executive Board has determined that it cannot, and will not recommend that any player enter into a new agreement with Topps, or renew or extend any existing agreement with Topps, pending the outcome of the discussions between the association and Topps.” Accordingly, few players signed renewals with Topps. The MLBPA thereafter presented Topps with a licensing offer of “commercially reasonable terms.”

Topps’ player contracts were set to expire with approximately 100 individual Major League players (a group that included most of the players deemed “superstars”) on December 31, 1986. Topps complained that it would be unable to produce a complete set of cards for 1987 if those contracts were allowed to expire.

In its opinion issued on August 1, 1986, the court found questions of fact regarding whether the MLBPA intended to obtain monopoly power. However, denial of Topps’ request for a preliminary injunction was a monumental win for the MLBPA, “Topps can easily avoid the irreparable harm it claims it will suffer by accepting the offer the MLBPA has made.” In other words, Topps could simply pay for the rights to renew those 100 players with expiring contracts, however unpalatable it was to Topps. Forced into the corner, a deal was struck that allowed Topps to market a full set in 1987 and beyond.

Though card manufacturers like Topps generally kept production numbers private, “one trade magazine estimated the tally at 81 billion trading cards per year in the late ‘80s and early ‘90s, or more than 300 cards for every American annually.”

In Re: Nolan Ryan Rookie Card

In April 1990, a 12-year-old collector walked out of the Ball-Mart card shop in Addison, Illinois with a beautiful 1968 Topps Nolan Ryan card. The owner of the shop, Joe Irmen, had been in the baseball card business for just a few weeks and had marked the card “1200” without a dollar sign, comma, or decimal point ($1200 was essentially top dollar for the card at the time). During a blitz of customers at the card shop, Irmen asked a clerk from his next-door jewelry store to help out. Unfortunately, that clerk had no knowledge about the value of the card and mistakenly sold it for $12.

After being inundated with requests for cheap Ryan rookie cards, Irmen discovered the $1200 card in his case had been sold at a steep discount—the receipt on file clearly showed the $12 purchase price.

The case was literally frontpage news in 1990.

Irmen initiated a manhunt and posted a sign in his store offering a $100 reward for information about the person who had purchased the card. Once the buyer (a minor) was identified, Irmen went to the child’s house, but no one answered the door. Thereafter unable to negotiate its return, Irmen filed a lawsuit in an effort to recover the card. The family, who felt the card was purchased fairly, filed a $60,000 counterclaim for defamation. 

The matter was set for trial on March 5, 1991 in front of DuPage County Judge Ann Jorgensen. Before the proceedings began, it was revealed that a trade had been made the night before in which the 1968 Ryan card had been exchanged for a 1965 Joe Namath rookie and 1967 Tom Seaver rookie. The bombshell revelation resulted in a shouting match between the attorneys. Bailiffs had to clear the courtroom.   

Once order was restored, the case was continued and eventually settled by way of the parties agreeing to have the card auctioned off for charity. On June 21, 1991 the card was sold for $5000, and the proceeds split between the parties to be donated to charities of their choice. 

Cutting Cards: A Cautionary Tale

In what may qualify as the original “cart art,” Dad’s Kid Corporation produced a set of “Tri Cards” in 1992 that were assembled using three identical baseball cards issued by Donruss, Fleer, Score, or Upper Deck. The top two cards were die-cut such that only the body of player remained. Those two pieces were then stacked and glued atop an uncut card to create a neat 3-D effect. Each card was encased in a plastic box and sold individually or in a two-pack, packaged such that each card was visible to potential buyers.

Front and back of Wade Boggs Tri Card, constructed from three 1991 Upper Deck cards.

The owner of Dad’s Kid Corporation, Christopher Kamar, had struck deals with Toys R Us, F.A.O. Schwartz, Spencer Gifts, and other retailers to sell his Tri Cards. Almost immediately, the Tri Cards were so popular that Dad’s Kid had to run three shifts of 100 assemblers per shift just to meet demand. In fact, its initial shipment to Toys R Us was so successful, Dad’s Kid had a reorder on the table worth upwards of $20 million when Upper Deck, Score, Leaf, and the MLBPA filed coordinated lawsuits in New York and California seeking to stop Dad’s Kid from selling its Tri Card products. The respective lawsuits alleged that any modification of existing baseball cards, without prior written permission, violated trademark and copyright law.

For its part, Dad’s Kid had undertaken a thorough legal analysis before it began the manufacturing process and was operating under a good-faith belief it was not infringing on any rights; it was simply using cards purchased legally on the secondary market. Moreover, the company posted an explicit disclaimer on each box alerting consumers it was not claiming any rights with respect to the cards and was otherwise not affiliated with any of the card manufacturers, MLB, or the MLBPA.

In the New York case, the MLBPA moved for an injunction asking the court to stop Dad’s Kid from selling Tri Card products. The district court refused, citing the “first-sale doctrine” in a ruling issued on November 12, 1992:   

“The fact that an enormous secondary market exists for baseball cards and baseball card derivative works leads me to conclude on this record that baseball players have little if any continuing publicity rights with respect to the use and reuse of their pictures on cards by subsequent purchasers and sellers of duly licensed baseball cards following a perfectly proper first sale into commerce for which the players get a royalty.” Effectively, the players did not have the right to control what was done with the cards after the initial sale and had no claim for any additional compensation. On the heels of this victory, Dad’s Kid announced its Tri Cards would be back in 1993.

The lawsuits rolled on, however, and in April 1993 the New York case was consolidated with the California matters to continue there. Unfortunately for Dad’s Kid, the California district court did not agree with (and was not bound by) the New York first-sale ruling and instead issued a permanent injunction on August 12, 1994 that prohibited Dad’s Kid from producing any further Tri Cards. The court further ordered that Dad’s Kid reimburse the plaintiff card manufacturers and MLBPA over $1 million collectively in attorneys’ fees and costs.

Dad’s Kid appealed and the case was eventually dismissed on March 8, 1996, pursuant to a confidential settlement.

Johnny Bench Hit by his Own Pitch

Sports cards and memorabilia sales continued to soar in the 1990s and quickly became a fixture on shop-at-home television stations. This format often preyed on those unfamiliar with the actual value of items and otherwise created an environment where even sophisticated collectors might get caught up in the frenzied sales tactics.  

Hall of Fame catcher Johnny Bench appeared on the Home Shopping Network on August 5, 1993 to hawk baseballs he had signed. In typical shop-at home fashion, viewers were initially told the autographed balls were worth $129. They claimed the baseballs would sell out at $99.95. Finally, the Bench-signed baseballs were dropped to the low, low price of $49.95.

Unfortunately for the Home Shopping Network and Bench, however, the New York Department of Consumer Affairs had started to monitor the values claimed for sports card and memorabilia. With the help of a trusted price guide, they determined that an autographed Johnny Bench baseball was worth $35, only 70% of its final “sensational” sales price.   

The first celebrity endorser to face such charges in New York, Bench was personally cited for misrepresenting the value of his own signature on a ball. Bench was hit with a $5000 fine in December and Home Shopping Network was ordered to pay $30,000.

Poking the Bear

Seeking to “put the fun back in baseball card collecting,” Cardtoons readied a 1993 release of parody baseball cards intended to poke fun at the egos and greed in the game (and the world) with an issue that was equal parts Wacky Packages, Garbage Pail Kids, and traditional trading cards. The set of 130 cards lampooned current players, retired legends, Michael Jordan (the baseball player) and political figures like Bill Clinton.

Clockwise: Raging Tartabull (No. BB-15), The Say What Kid (No. 40),
Treasury Bonds (No. 8), Slick Willie (No. S-3).

Cardtoons tapped free agent sportswriter Mike Sowell to create the players’ alter egos and write the card backs. Caricatures by Dayne Dudley and Dave Simpson were deftly rendered so that each individual was recognizable without including team logos that might run afoul of MLB’s rights. In fact, even the team names were changed to cheeky monikers (e.g., Orioles/Bore-Ioles and Cubs/Scrubs). The glossy cards were distributed in foil packs along with chase cards, foil versions, insert sets, puzzles, and redemption cards intended to skewer the baseball card industry, itself. Cardtoons’ initial run called for some 13 million cards to be printed.

Cardtoons first advertised their cards in the May 14, 1993 issue of Sports Collector Digest. This caught the attention of the MLBPA (who had not issued a license to Cardtoons to use the likenesses of the players depicted). The MLBPA sent Cardtoons a letter on June 18 asserting that its product violated the “valuable property rights of MLBPA and the players” and threatened legal action if any cards of active baseball players were sold. A similar letter was sent to the printing company, who immediately halted production.

Just days after receipt of the cease-and-desist letter, Cardtoons filed a lawsuit against MLBPA seeking a declaration that it could sell parody baseball cards without license from the MLBPA pursuant to First Amendment protection. At a subsequent evidentiary hearing, Cardtoons revealed it was sitting on nearly 4000 cases of product ready to ship. The MLBPA claimed it would never have licensed a parody set that poked fun at individual players (and also admitted to a “glut” in the market for baseball cards!).

The district court considered that parodies (such as political cartoons) were generally protected by the First Amendment and “deserving of substantial freedom—both as entertainment and as a form of social and literary criticism.” The issue the court wrangled with, however, was whether “one can sell a parody” and ultimately decided that Cardtoons could not profit from the players’ likenesses and fame. An order was entered that prohibited Cardtoons from selling cards containing the likenesses of active Major League ballplayers (101 of the 130 cards in the set). Damages were denied because none of the cards had actually been sold at the time the decision was rendered on November 23, 1993.          

The Cardtoons set eventually saw the light of day, however, because raunchy rap group 2 Live Crew sampled a Roy Orbison song without permission. In a case that went all the way to the U.S. Supreme Court, 2 Live Crew prevailed in a ruling handed down on March 7, 1994 in which it was held that a commercial (i.e., made specifically for sale) parody song could constitute fair use.

Cardtoons sought reconsideration in light of the 2 Live Crew ruling and on October 25, 1994, the district court reversed its prior decision, this time finding it reasonable that Cardtoons would seek compensation for its efforts and recognized that “parodists will seldom get permission from those whose works are parodied. Self-esteem is seldom strong enough to permit the granting of permission even in exchange for a reasonable fee.” The court ultimately ruled that that right of publicity did not “confer a shield to ward off caricature, parody and satire” and that the Cardtoons cards were protected by the First Amendment, regardless of their commercial nature.   

Finally clear to distribute their cards, Cardtoons released the set in 1995—the product’s overarching message elegantly punctuated by intervening strike and cancellation of the 1994 World Series. While the original version of cards was set to be “90 percent positive in the way they portrayed players,” Sowell’s opinion soured as the court battle raged. He decided there was “no need to be nice” and satirized the players as he saw fit.

Front and back of Egotisticky Henderson (No. 35).

The appeal filed by MLBPA was denied in 1996, the Tenth Circuit ruling succinctly that “the last thing we need, the last thing the First Amendment will tolerate, is a law that lets public figures keep people from mocking them.” But for the protracted lawsuit, Cardtoons had plans to issue card sets for other sports.

Mickey Mantle v. Upper Deck

On February 1, 1993 Mickey Mantle entered a three-year contract that gave Upper Deck “exclusive worldwide rights to use and reuse. . .Mantle’s name (as well as any nicknames), image, likeness, artists’ portrayal of image or likeness, visual representation, signature (or facsimile thereof), photograph, voice, biography, statistics and endorsements” for baseball cards and associated promotional materials. Upper Deck’s 1993 Mantle issues were relatively modest, including several “All-Time Heroes” multiplayer cards and a “Then and Now” card featuring a young Mantle aside a holographic image an older Mantle wearing an Upper Deck jersey. 

In 1994, Upper Deck produced a slew of Mantle cards, including one that was personally signed by both Mantle and Ken Griffey Jr. That year, Topps also issued a Mantle card as part of its Archive set, styled as a 1954 Topps card and clearly indicating on the reverse that it had rights to issue the card per an agreement with Upper Deck. (Mantle was signed with Bowman exclusively in 1954 and 1955 and Topps had not issued Mantle cards those seasons.)

Though labeled as a Topps Heritage issue, this card (No. 259) was actually distributed as an insert card in packs of 1994 Upper Deck All-Time Heroes because Upper Deck held exclusive rights.

Despite Upper Deck wholeheartedly issuing a multitude of Mantle cards in 1994, the company reportedly soured on the deal after Mantle publicly admitted he had undergone alcohol rehabilitation. Mantle filed a lawsuit late in the year claiming that Upper Deck had threatened to rescind the contract unless he agreed to take a pay cut. Upper Deck admitted, “discussions regarding restructuring Mr. Mantle’s contract were the product of his disability and other performance-related concerns.” Upper Deck claimed Mantle had “failed to live up to his commitments as effective spokesperson for the company.”  

In February 1995 the parties agreed to participate in arbitration (an alternative dispute resolution process in which three arbitrators—not a jury or judge—decide the case and amount of damages, if any). Despite the ongoing dispute, Upper Deck went ahead and issued a set of metallic Mickey Mantle baseball cards in 1995.

Somewhat ironically, Upper Deck sued several parties in a separate action on February 14, 1995 claiming that those companies could not sell items autographed by Mantle during the term of Upper Deck’s exclusive contract with Mantle. One of those companies, Score Board, prevailed because its contract with Mantle specifically provided it could sell off remaining merchandise after that contract expired on January 31, 1993.  At the same time, Score Board had separately sued Upper Deck in New Jersey claiming that Upper Deck was improperly selling autographed Ken Griffey Jr. signatures that Score Board had exclusive right to sell.

On May 28, 1995, Mantle was hospitalized and underwent a liver transplant on June 8. After Mantle passed away on August 13, 1995, collectors scrambled to acquire Mantle items and Upper Deck, alone, sold more than $500,000 worth of Mantle memorabilia on the heels of his death. Mantle’s (estranged) widow Merlyn and personal attorney Roy True continued to prosecute the Upper Deck case on behalf of Mantle’s estate.  

On May 22, 1996 the arbitration panel awarded the estate nearly $5 million (approximately $9.7 million in today’s dollars), which included actual damages for having sold Mantle merchandise without a license to do so, punitive damages, and attorney’s fees. Upper Deck sought to have the award vacated, but their efforts failed, and the lawsuit was closed in April 1997.

Orel Hershiser Adds Another Shutout

Orel Hershiser is probably best known for his amazing 1988 pitching performance in which he tossed 59 consecutive shutout innings. A decade later, Hershiser sued Vintage Sports Plaques (“Vintage”) for infringement of licensing and publicity rights after learning that Vintage was selling Hershiser’s baseball cards affixed to wooden plaques and labeled with his name. (Deluxe plaques included a “clock with a sports motif.”) The Hershiser cards used by Vintage were purchased from licensed manufacturers and framed without alteration. Vintage, itself, had no licensing agreements with any parties.

1989 Topps Record Breaker (No. 5)
Wouldn’t this make an amazing clock?

Vintage argued that the “first-sale doctrine” was a complete defense to the publicity claims. The first-sale doctrine provides that “once the holder of an intellectual property right consents to the sale of particular copies. . .of his work, he may not thereafter exercise the distribution right with respect to such copies.” The court rightly recognized that its failure to apply the first-sale doctrine in the Hershiser case would “render tortious the resale of sports trading cards and memorabilia” and would have a chilling effect on the secondary market for trading cards. In fact, refusing to apply the first-sale doctrine here would essentially make it impossible for a child to sell a baseball card to a friend.

Ultimately, the court found that Vintage was merely reselling cards that it had lawfully obtained. “This is more appropriately classified as a case of an entrepreneur repackaging or displaying the trading cards in a more attractive way to consumers rather than a case of an opportunist using Plaintiffs’ names and likenesses to sell frames and clocks.” The appellate court affirmed and the plaintiff’s declined to pursue any further appeal to the U.S. Supreme Court. Hershiser was shutout.

An Ocean of Cards

Although the MLBPA had long been involved in baseball card-related disputes and litigation, the owners of the ballclubs had not been quite so active, perhaps because collecting money for the use of their trademarked logos and uniforms, while very lucrative, was not the lifeblood that licensing revenue represented for the MLBPA.

This changed in 1998, however, when Major League Baseball Properties, Inc. (“MLB”) learned that Pacific Trading Cards was in the process of manufacturing and distributing cards that depicted players in their MLB uniforms, despite MLB having refused to grant a license to Pacific for the current set. (MLB had authorized previous Pacific issues).

Pacific was fully licensed by the MLBPA and went forward with manufacture “either believing mistakenly that it would receive a license from MLB or not caring whether it would.” The MLB sued to stop Pacific from distributing their cards. The MLB’s request for a preliminary injunction was denied, inter alia, because the court felt that the inclusion of the logos or trademarks were only incidental to the depiction of the player and did not imply any sponsorship by MLB for the card.

An appeal followed by MLB and Pacific implored the court for permission to ship their cards immediately or the results would be financially ruinous. Ultimately, MLB and Pacific were able to reach a settlement and Pacific continued to issue sets of baseball cards through 2001.   

Throughout the 1990s, card companies, like Pacific, continued to churn out nearly innumerable piles of cards. An exclusive license for Topps was on the horizon, but the fighting would continue in nearly every corner of the hobby. 

To be continued…

Sources/Notes:

Cases

  • Fleer Corp. v. Topps Chewing Gum, Inc., 501 F.Supp. 485 (E.D. Pa. 1980). The only trading card product ever to outsell baseball cards was Wacky Packages in 1973-74. The court noted that the slab of gum weighed “4.30 grams” in 1978. Fleer had a net operating loss in 1978 and its net income (loss) was as follows: 1977—$346,621; 1976—$502,257; 1975—$720,274; 1974—($309,261); 1973—$382,354; 1972—$268,926; 1971—$148,494; 1970—($200,016). Roughly two thirds of baseball cards purchased are purchased by “heavy” buyers (i.e., those who purchase more than 200 cards per year.)  
  • Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139, 658 F.2d 139 (3rd Cir. 1981). The number of players included in each licensing agreement varied. Some contracts, like those with Coca-Cola and Kellogg’s covered all the players, while others included “not less than 72, and not more than 300.”
  • Fleer Corp. v. Topps Chewing Gum, Inc., cert. denied, 455 U.S. 1019 (1982).
  • Topps Chewing Gum, Inc. v. Fleer Corp., 547 F.Supp. 102 (D. Del. 1982).
  • Tetley, Inc. v. Topps Chewing Gum, Inc., 556 F.Supp. 785 (E.D.N.Y. 1983). Tetley Tea manufacturer sued Topps for including “Petley Flea Bags” in its Wacky Packages release. Approximately 200,000 of the sticker was issued between 1975 and 1977 and Topps had produced approximately 400,000 more of the sticker for its 1982 release. Topps agreed to discontinue distribution of the offending sticker once the printed run was fully depleted.
  • Topps Chewing Gum, Inc. v. Major League Baseball Players Association, 641 F.Supp. 1179 (S.D. N.Y. 1986)  Topps paid royalties to the MLBPA computed at 8% of Topps’ first $4 million in net sales and 10% of Topps’ net sales in excess of $4 million.
  • Topps Chewing Gum, Inc. v. Fleer Corp., 799 F.2d 851 (2nd Cir. 1986). The MLBPA was granted intervention as a defendant in Topps case against Fleer; Topps had not sued the MLBPA directly in this action. The matter was remanded to the district court to be dismissed without prejudice, which would have allowed the MLBPA to have filed a new lawsuit against Topps, if they desired. No such suit was filed. 
  • Original Appalachian Artworks, Inc. v. Topps Chewing Gum, Inc., 642 F.Supp. 1031 (N.D. Ga. 1986).  The makers of Cabbage Patch Kids sued Topps for copyright and trademark infringement caused by the sale of its Garbage Pail Kids stickers. Between May 1985 and August 1986, Topps had sold more than 800 million stickers. Before issuing the Garbage Pail Kids product, Topps had unsuccessfully tried to obtain a license for Cabbage Patch Kids. Topps eventually agreed to a confidential cash settlement and design changes to the cards. “Cabbage Patch Dolls are Victorious Over Garbage Pail Kids.” The Columbus (Georgia) Ledger, February 4, 1987: 8.  
  • Fleer Corp. v. Topps Chewing Gum, Inc. 539 A.2d 1060 (Del., 1988). “Restitution serves to ‘deprive the defendant of benefits that in equity and good conscience he ought not to keep, even though he may have received those benefits honestly in the first instance, and even though the plaintiff may have suffered no demonstrable losses.’”
  • Cardtoons v. Major League Baseball Players Ass’n, 838 F. Supp. 1501 (N.D. Okla. 1993). The six companies with MLBPA licenses to sell baseball cards at the time were producing an estimated $1.3 billion in annual sales. Caricature was defined as “the deliberate distorted picturing or imitating of a person, literary style, etc. by exaggerating features or mannerisms for satirical effect.” 
  • Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). The District Court had granted summary judgment for 2 Live Crew, holding that its song “Pretty Woman” was a parody that made fair use of the original Roy Orbison song “Oh, Pretty Woman.” The appellate court reversed because they felt 2 Live Crew had “taken too much” of the original for their own use and that the song constituted a commercial use. The Supreme Court subsequently reversed and remanded holding that 2 Live Crew’s commercial parody might qualify as fair use.
  • Cardtoons v. Major League Baseball Players Ass’n, 868 F. Supp. 1266 (N.D. Okla. 1994).
  • Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 39 USPQ2d 1865 (10th Cir. 1996). “Because Cardtoons’ First Amendment right to free expression outweighs MLBPA’s proprietary right of publicity, we affirm.” The court noted that royalties from baseball cards generated over 70 percent of the MLBPA’s licensing revenue.
  • Mantle v. Upper Deck Co., 956 F.Supp. 719 (N.D. Texas, 1997). Mantle sued The Upper Deck Company and Upper Deck Authenticated, Ltd.  These related companies are referred to collectively as “Upper Deck” for the reader’s benefit. Judgment confirmed for Estate of Mickey Mantle against defendants in the principal amount of $2,725,258.00, exemplary damages in the amount of $1,000,000.00, attorney’s fees in amount of $1,241,628.00, prejudgment interest at 10% per year from the date of the award until the date of judgment, and post-judgment interest at 5.81% per year.
  • Upper Deck Authenticated, Ltd. v. CPG Direct, 971 F.Supp. 1337 (S.D. Cal. 1997). Defendants included Shop at Home, Inc., CPG Direct, B&J Collectibles, William Rodman, Kenneth Goldin, Classic Games, Inc., Catch a Star Collectibles, Inc., The Score Board, Inc., Score Board Retail Corporation, The Score Board Holding Corporation.
  • The Score Board, Inc. v. Upper Deck Co., 959 F.Supp. 234 (D. N.J. 1997).
  • Allison v. Vintage Sports Plaques, 136 F.3d 1443 (11th Cir. 1998). Hershiser had otherwise earned $230,000 from licensing and endorsement deals from 1993 through 1996. Stockcar driver Cliff Allison’s widow Elisa was also a plaintiff in the case.
  • Major League Baseball Properties, Inc. v. Pacific Trading Cards, Inc., 1998 WL 241904 (S.D. N.Y. 1998).
  • Major League Baseball Properties, Inc. v. Pacific Trading Cards, Inc., No. 98-7700 (2nd Cir. 1998).
  • Cardtoons v. Major League Baseball Players Ass’n, 182 F.3d 1132 (10th Cir. 1999); Cardtoons v. Major League Baseball Players Ass’n, 208 F.3d 885 (10th Cir. 2000); Cardtoons v. Major League Baseball Players Ass’n, 335 F.3d 1161 (10th Cir. 2003). Cardtoons tried, and failed, to collect monetary damages from the MLBPA.

Articles

  • Paul Lomartire, “Baseball Cards and the Snaps of Spring,” The Tampa Tribune, April 4, 1982: 133.
  • John Leptich, “Boy sued over baseball card,” Chicago Tribune, November 10, 1990: 1.
  • “Nolan Ryan rookie card snafu headed to court,” The Tribune (Scranton, Pennsylvania), March 6, 1991: 12.
  • John Leptich, “Baseball card returns, trial goes on,” Chicago Tribune, March 8, 1991: 49.
  • John Leptich, “Charity delivers winning pitch in baseball card suit,” Chicago Tribune, April 23, 1991: 47.
  • John Leptich, “Ryan card brings $5000 and another flap,” Chicago Tribune, June 22, 1991: 41.
  • “Upper Deck Sues Rival Card Firm; Claims Trademark Infringement,” North County Times (Oceanside, California), August 2, 1992: 31.
  • Anne Michaud, “Small Baseball Card Firm Takes Hit from Big Leagues,” Los Angeles Times, October 22, 1992: 265.
  • “For the Record,” Los Angeles Times, October 23, 1992: 195. Dad’s Kid filed a counterclaim for $955 million.
  • Jim Bullard, “More than kids’ stuff,” Tampa Bay Times, January 1, 1993: 96.
  • Owen Canfield, “ML Players Association not amused by ‘Cardtoons,’” Central New Jersey Home News (New Brunswick, New Jersey), July 9, 1993: 24.
  • “Bench’s ink pitch draws ire,” Herald and Review (Decatur, Illinois), October 8, 1993: 30.
  • “Mantle files lawsuit against Upper Deck on contract balk,” Logansport (Indiana) Pharos-Tribune, November 4, 1994: 12.
  • Jay D. Preble, “Leagues fighting unlicensed cards,” Tampa Tribune, November 12, 1994: 24.
  • Gene Collier, “How do you spell egomaniacal?,” Pittsburgh Post-Gazette February 12, 1995: 25.
  • John Mabry, “Satire cards aren’t a hit with big-league players, Kansas City Star, April 16, 1995: 44.
  • “Doctor Says Mantle’s Prognosis ‘Quite Good’,” Daily Sitka (Alaska) Sentinel, June 23, 1995: 10.
  • Norm Cohen, “Classy Ripken Has No Quota,” Newsday (Nassau Edition) (Hempstead, New York), August 6, 1995: 144.
  • “Jordan, others not satisfied with agreement,” Index-Journal (Greenwood, South Carolina), August 17, 1995: 17.
  • “Baseball,” Salina (Kansas) Journal, June 2, 1996: 34.
  • “Appeal Fails Over Use of C. Allison Trading Card,” Birmingham Post-Herald, March 28, 1998: 14.
  • Dave Jamieson, “The Great Baseball Card Bubble,” Slate, March 24, 2010.

Websites

https://bizfileonline.sos.ca.gov/search/business, Record number 1826013, accessed October 18, 2022.

tcdb.com

Interviews

  • Christopher Kamar, telephone interview with author, October 21, 2022.
  • Michael Sowell, telephone interview with author, November 5, 2022.

Special Thanks

Special thanks to Jason Schwartz for reviewing this article and offering helpful suggestions.

Appendix 1

Tri Cards Checklist (Cards are not identified with a Tri Cards set number or date of issue by Dad’s Kid Corp. Cards are individually numbered to 50,000. Production was halted before 50,000 of any card was manufactured and no records remain regarding the actual number produced of each Tri Card. Additionally, no checklist of Tri Cards manufactured exists, so the following list may be incomplete.)

PlayerCard Used
Alomar, Roberto1991 Donruss
Alomar, Sandy1992 Donruss
Boggs, Wade1991 Upper Deck
Bonds, Barry1991 Donruss
Bonilla, Bobby1991 Donruss
Browning, Tom1991 Upper Deck
Canseco, Jose1991 Score
Canseco, Jose1991 Upper Deck
Canseco, Jose1991 Score
Chamberlain, Wes1992 Donruss
Chamberlain, Wes1991 Fleer
Clark, Will1991 Upper Deck
Davis, Eric1991 Fleer
Davis, Eric1991 Upper Deck
Dawson, Andre1991 Upper Deck
Fielder, Cecil1991 Upper Deck
Fielder, Cecil1991 Donruss
Gonzalez, Juan1992 Donruss
Gooden, Dwight1991 Score
Gooden, Dwight1991 Upper Deck
Ken Griffey Jr.1991 Upper Deck
Ken Griffey Jr.1991 Donruss
Henderson, Rickey1991 Upper Deck
Henderson, Rickey1990 Score
Henderson, Rickey1991 Donruss
Jefferies, Gregg1991 Upper Deck
Johnson, Howard1992 Donruss
Joyner, Wally1991 Fleer
Justice, Dave1991 Donruss
Maas, Kevin1991 Donruss
Martinez, Ramon1992 Donruss
Mattingly, Don1991 Upper Deck
McGriff, Fred1991 Donruss
Mitchell, Kevin1991 Upper Deck
Morris, Jack1990 Upper Deck
Ripken, Cal1991 Upper Deck
Ryan, Nolan1991 Upper Deck
Ryan, Nolan1991 Donruss
Sandberg, Ryne1991 Donruss
Smith, Ozzie1991 Donruss
Strawberry, Darryl1991 Score
Thomas, Frank1991 Donruss
Vaughn, Greg1991 Fleer
Yount, Robin1991 Fleer
Appendix 1 – Tri Cards Checklist

Author: John Racanelli

John is a Chicago lawyer with an insatiable interest in baseball-related litigation. When not rooting for his beloved Cubs (or working), he is probably reading a baseball book or blog, planning his next baseball trip, or enjoying downtime with his wife and family. He is probably the world’s foremost photographer of triple peanuts found at ballgames and likes to think he has one of the most complete collections of vintage handheld electronic baseball games known to exist. John is a member of the Emil Rothe (Chicago) SABR Chapter and Co-Chair of the SABR Baseball Landmarks Research Committee.

5 thoughts on “Death and Taxes and Baseball Card Litigation [Part III, 1986-1998]”

  1. Heckuva series here! Great job once again. Curious what you think is the right thing to do with the Dad’s Kid cards. Right now I have my Gooden cards still sealed in the original box, but part of me feels like that’s not the intended state.

    Liked by 1 person

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