Brief Fact Summary.
Plaintiff sued Defendant, seeking declaratory judgment that it was authorized to produce the parody trading cards without the consent of Defendant. The district court held for Plaintiff and Defendant appealed.
Synopsis of Rule of Law.
In Oklahoma, the sale of parody trading cards featuring the names or likenesses of major league baseball players is protected speech under the First Amendment.
In Cohen, the defendant was convicted of disturbing the peace for wearing a jacket bearing the words Fuck the draft to a California courthouse.View Full Point of Law
Cardtoons, L.C. (Plaintiff), an Oklahoma corporation, produced baseball trading cards that parodied major league players. The cards featured animated caricatures of active players on the front and humorous commentary on the back. A person familiar with baseball could readily identify the player lampooned on the trading card. For example, a trading card parodying San Francisco Giants player Barry Bonds was named “Treasury Bonds,” and a card featuring the likeness of Ken Griffey, Jr., was called “Ken Sniffy, Jr.” After the trading cards were advertised for sale, the Major League Baseball Players Association (Defendant), the exclusive agent for all active players, ordered Plaintiff and its printer to halt production of the cards. Defendant also operated a group licensing program whereby it entered into licensing arrangements with various companies and vendors, collected any profits, and distributed revenues to individual players. There was no agreement between Plaintiff and Defendant. Plaintiff sued Defendant and sought a declaratory judgment that it was authorized to produce the parody trading cards without the consent of Defendant. The district court held for Plaintiff and Defendant appealed.
Whether in Oklahoma, the sale of parody trading cards featuring the names or likenesses of major league baseball players is protected speech under the First Amendment.
Yes. The trial court’s ruling is affirmed. In Oklahoma, the sale of parody trading cards featuring the names or likenesses of major league baseball players is protected speech under the First Amendment.
The right of publicity is the right of a person to control the commercial use of his or her identity. This right was first recognized as an independent right in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2nd Cir.1953). In Haelan, the court noted that a major league baseball player has a cognizable property right in the publicity value of his photograph on a baseball trading card. Here, Defendant holds the property rights to the images and likenesses of the baseball players it represents. First, the court must determine whether Plaintiff’ parody trading cards infringes upon the property rights of Defendant. If so, the court then must determine whether Plaintiff has a First Amendment right to produce the trading cards without the consent of Defendant. If the trading cards are protected speech, the court must then weigh the importance of each party’s interests. Oklahoma law provides that a civil suit for infringement for of Defendant’s publicity rights requires Defendant to prove that Plaintiff (1) knowingly used players’ names or likenesses; (2) on products, merchandise, or goods; and (3) without Defendant’s prior consent. Okla.Stat. tit. 12, § 1449(A). The evidence produced at trial clearly shows that Defendant met its required burden of proof as to the three elements. Not only did Plaintiff use the names and likenesses of players on cards marketed for sale, it did so without Defendant’s consent. However, Plaintiff argues that it has a First Amendment right to sell the cards as protected speech. Because Plaintiff directly challenges a state law that imposes restrictions on its right of free expression it has satisfied the state action requirement for a First Amendment claim. Consequently, the court must balance the magnitude of the speech restriction against the asserted governmental interest in protecting Defendant’s property right. Here, Plaintiff’ interest in publishing its parody trading cards implicates some of the core concerns of the First Amendment. Parody is often a valuable tool for society to point out the foolish or absurd and often to point out the level of importance society places upon celebrities and professional athletes. Restricting the use of celebrity identities restricts the communication of ideas. On the other hand, Defendant has various economic and non-economic rights in the names and likenesses of the players it seeks to protect, primarily an interest in safeguarding the time, effort, and dedication the players have spent toward honing their craft. After years of playing to reach the level of major league baseball, the players ought to reap the publicity and monetary fruits of their labors. However, the total effect on Defendant’s right of publicity is negligible when compared with the restrictions placed on the First Amendment rights of Plaintiff.