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Cardtoons, L.C. v. Major League Baseball Players Ass'n

Cardtoons, L.C. v. Major League Baseball Players Ass'n

United States Court of Appeals for the Tenth Circuit

August 27, 1996, Filed

No. 95-5006

Opinion

 [***1866]   [*962]  TACHA, Circuit Judge.

Cardtoons, L.C., ("Cardtoons") brought this action to obtain a declaratory judgment that its parody trading cards featuring active major league baseball players do not infringe on the publicity rights of members of the Major [**2]  League Baseball Players Association ("MLBPA"). The district court held that the trading cards constitute expression protected by the First Amendment and therefore read a parody exception into Oklahoma's statutory right of publicity. MLBPA appeals, arguing that (1) the district court lacked jurisdiction to issue a declaratory judgment and (2) Cardtoons does not have a First Amendment right to market its trading cards. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. Because Cardtoons' First Amendment right to free expression outweighs MLBPA's proprietary right of publicity, we affirm.

I. Background

Cardtoons formed in late 1992 to produce parody trading cards featuring caricatures of major league baseball players. Cardtoons contracted with a political cartoonist, a sports artist, and a sports author and journalist, who designed a set of 130 cards. The majority of the cards, 71, have caricatures of active major league baseball players on the front and humorous commentary about their careers on the back. The balance of the set is comprised of 20 "Big Bang Bucks" cards (cartoon drawings of currency with caricatures of the most highly paid players on the front, yearly [**3]  salary statistics on the back), 10 "Spectra" cards (caricatures of active players on the front, nothing on the back), 10 retired player cards (caricatures of retired players on the front, humorous commentary about their careers on the back), 11 "Politics in Baseball" cards (cartoons featuring caricatures of political and sports figures on the front, humorous text on the back), 7 standing cards (caricatures of team logos on the front, humorous text on the back), and 1 checklist card. Except for the Spectra cards, the back of each card bears the Cardtoons logo and the following statement: "Cardtoons baseball is a parody and is NOT licensed by Major League Baseball Properties [***1867]  or Major League Baseball Players Association."

A person reasonably familiar with baseball can readily identify the players lampooned on the parody trading cards. The cards use similar names, recognizable caricatures, distinctive team colors, and commentary about individual players. For example, the card parodying San Francisco Giants' outfielder Barry Bonds calls him "Treasury Bonds," and features a recognizable caricature of Bonds, complete with earring, tipping a bat boy for a 24 carat gold "Fort Knoxville Slugger."  [**4]  The back of the card has a team logo (the "Gents"), and the following text:

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95 F.3d 959 *; 1996 U.S. App. LEXIS 22629 **; 39 U.S.P.Q.2D (BNA) 1865 ***; 24 Media L. Rep. 2281

CARDTOONS, L.C., an Oklahoma Limited Liability Company, Plaintiff - Appellee, v. MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION, an unincorporated association, Defendant - Appellant. First Amendment Publishing, Inc., Joseph Mauro, pro se, Amicus Curiae.

Prior History:  [**1]  APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. (D. Ct. No. 93-C-576-E). D.C. Judge JAMES O. ELLISON.

Disposition: AFFIRMED. Motion by First Amendment Publishing, Inc. for leave to file an amicus curiae brief GRANTED, the motion by appellee to strike DENIED and the motion by appellee to file a supplemental appendix and brief in support GRANTED.

CORE TERMS

cards, parody, players, celebrity, right of publicity, trading, rights, baseball, likenesses, infringe, declaratory judgment, property right, major league baseball, caricatures, licensing, advertising, sports, federal question, Lanham Act, humorous, intellectual property, district court, trademark, products, entertainment, featuring, commercial speech, free expression, creative, fruits

Civil Procedure, Subject Matter Jurisdiction, Federal Questions, General Overview, Jurisdiction, Jurisdictional Sources, Jurisdiction Over Actions, Judgments, Declaratory Judgments, Federal Declaratory Judgments, Trademark Law, Entertainment Industry Falsity & Performance Misattribution, Trade Dress Protection, Federal Unfair Competition Law, False Advertising, Business & Corporate Compliance, False Designation of Origin, Elements of False Designation of Origin, Lanham Act, Jurisdiction, Particular Subject Matter, Names, Constitutional Law, Bill of Rights, Fundamental Freedoms, Constitutional Sources, The Judiciary, Freedom of Speech, Justiciability, Case & Controversy Requirements, Actual Controversy, Case or Controversy, Advisory Opinions, Patent Law, Defenses, Inequitable Conduct, Evidence, Burdens of Proof, Remedies, Likelihood of Confusion, Confusion Among Noncompeting Products, Parodies & Satires, Torts, Invasion of Privacy, Appropriation, Defenses, Commercial Speech, Causes of Action, Elements of False Advertising, Appeals, Standards of Review, Clearly Erroneous Review, Substantive Due Process, Privacy, Governments, Agriculture & Food, Product Promotions, Subject Matter of Trademarks, Right of Publicity, Special Marks, Elements, Scope, Political Speech, Advertising, Copyright Law, Fair Use, Governments, Courts, Authority to Adjudicate, Images & Likenesses, Intentional Torts, Intentional Infliction of Emotional Distress