Topps Trading Cards Go Online

3 1/2 weeks ago, I participated in an ABA teleconference and explained why the Eighth Circuit's decision in the CBC case was incorrectly decided. At one point, I discussed how the development of new technologies does not, and should not, change the right of publicity/First Amendment analysis, e.g. the fact that fantasy leagues are now being sold online as opposed to in a box off the store shelf (see Uhlaender case). In that regard, I mentioned that online trading cards, if there ever is such a thing, would not change the fact that the players have a right of publicity in trading card use (see Haelan Labs. case).

Yesterday, Laurie Sullivan of Online Media Daily reported that The Topps Co. has just announced a series of online baseball trading cards whereby the players come to life through a standard Web camera and technology. Consumers have an option to pull the "magic" card from the deck and play a game online by signing onto ToppsTown.com with a code and downloading a browser plug in, which then allows them to pitch, bat or catch in games served up from the website.

This new development by Topps really demonstrates why the Eighth Circuit's decision in the CBC case is flawed. The district court merely noted the factual distinction between trading cards and fantasy leagues in that trading cards contain likenesses. However, the court provided no explanation whatsoever as to why there should be a legal distinction, and the reason why it didn't is fairly simple: Because there is none. Moreover, the fact that Topps is now online and has created a game with the use of trading cards (akin to fantasy leagues) does not magicly transform trading cards into a First Amendment protected use.

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