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  Buzz Aldrin sues Topps, Inc. over trading cards (Page 2)

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Author Topic:   Buzz Aldrin sues Topps, Inc. over trading cards
Rob Joyner
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posted 12-30-2010 05:00 PM     Click Here to See the Profile for Rob Joyner   Click Here to Email Rob Joyner     Edit/Delete Message   Reply w/Quote
Some people believe Aldrin takes some things too far, like charging $400+ for an autograph. I, on the other hand, believe the other Moonwalkers don't charge near enough. Remember, in all of human history, and of the relatively few astronauts there have been, only 12 of them, just 12 people, have stepped foot upon the Moon. And to now still be able to meet and shake hands with any of the surviving Moonwalkers and then complain about how much some charge when some movie stars and sports figures charge even more is ridiculous. If that doesn't make sense, you probably won't agree with the rest here. If ethics should be talked about, then let's talk about Topps.

Topps is obviously trying to get something for nothing. The exclusion of Aldrin's name on the box front gives you a clue. Along with "Moon Landing Apollo 11" why wasn't the likes of "Famous U.S. Presidents" and "Baseball Heroes" used instead of specifying Lincoln and Mantle by name? I think that's because they thought they'd have a better chance in court by not using Aldrin's printed name. Further, why put Aldrin on the box cover at all? Is he, Lincoln and Mantle sincerely the greatest "American Heroes" who have ever lived?...Money.

There is a difference between "identifiable" and "recognizable". I cannot recognize nor see the actual face behind the visor, but because of the overall information available about the famous image itself I can identify the astronaut to be Aldrin. NASA's policy uses the word "identify", not "recognize".

The famous photo of Aldrin is hardly generic and it is quite speculative to say that 99.9999% of people would have no clue that it is Aldrin. Take into consideration there are people who couldn't care less about sports. To break it down, certainly there are at least those who like football or other sports, yet dislike baseball. If you were to take away Mantle's name from the box front I think more people could "identify" Aldrin than Mantle, if only because of the specific image itself, the image in question. If Topps was so genuinely adamant about proudly promoting and sharing information regarding such "American Heroes" by giving the sets away, this would be an entirely different issue, but this is about profit from card sales.

Since Topps is using Aldrin on the front of the box itself, and that Aldrin can indeed be identified in the specific photo, he is justly, and I think ethically, within his legal rights per NASA policy to pursue compensation from profits generated by these specific Topps card sales.

SpaceSteve
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posted 12-30-2010 05:04 PM     Click Here to See the Profile for SpaceSteve   Click Here to Email SpaceSteve     Edit/Delete Message   Reply w/Quote
In my view, these are the most important things to remember here:
  1. As Robert said, Dr. Aldrin IS identifiable in the photo, since his nametag ("E. Aldrin") is visible on the front of his suit.

  2. If a person wants to keep their intellectual property rights, they must fight for them in each and every instance they are violated. If they let one instance slide, they lose their rights completely.

  3. Topps has dealt with this type of thing before. One instance that immediately comes to mind is their reprinting of their 1952 baseball card set in 1983. They were required by law to obtain the rights to reprint the cards, from each and every player in the set (407 different players). They were able to successfully negotiate for the rights to reprint 402 of the cards. The other 5 players (who were in the original set issued in 1952), did not come to an agreement with Topps, so Topps had to exclude them from the reprint set.

  4. Another instance I know of was when the Pro Football Hall of Fame issued a set of cards depicting all the players in the Hall of Fame. They could not come to an agreement with Johnny Unitas, to issue a card of him, so they were forced by law to exclude him from the set. Eventually, they did come to an agreement, and issued his card a few years after the rest.

kosmo
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posted 12-30-2010 05:55 PM     Click Here to See the Profile for kosmo     Edit/Delete Message   Reply w/Quote
Wasn't Charles Duke's Apollo 16 moon photo used on a United States postage stamp for the very reason that you couldn't tell that it was Charles Duke? So what's the difference?

Russ Still
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posted 12-30-2010 06:52 PM     Click Here to See the Profile for Russ Still   Click Here to Email Russ Still     Edit/Delete Message   Reply w/Quote
Just to play the other side, I'd first argue that Aldrin is not seen and therefore is physically impossible to be recognized. He is invisible inside of a container. Regardless of the name on the nametag, you cannot see him. It is not an image of him, it's an image of his spacesuit.

NASA's definitions of "recognizable" or "identifiable" would likely be irrelevent. It would be an issue of Federal law, not NASA policy. I couldn't care less what NASA says on the subject.

There's quite a big difference between that and the sports cards and players that were mentioned. In those cases, the players' faces are shown. They are recognizable as themselves.

Regarding his signing prices, doesn't bother me at all. It's more than I care to pay, but plenty of others will line up for him all day long.

Just my opinion...

MarylandSpace
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posted 12-30-2010 08:23 PM     Click Here to See the Profile for MarylandSpace   Click Here to Email MarylandSpace     Edit/Delete Message   Reply w/Quote
Are there "Buzz Aldrin" cards in this set?

Robert Pearlman
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posted 12-30-2010 08:40 PM     Click Here to See the Profile for Robert Pearlman   Click Here to Email Robert Pearlman     Edit/Delete Message   Reply w/Quote
There are Buzz Aldrin insert cards with his cut-autograph, and there are cards featuring his mission patches (both in printed and miniature embroidered format) that include information about Aldrin.

Aldrin's primary contention seems to be the use of his image on Topps' marketing materials, including the retail box and individual card packs.

jimsz
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posted 12-30-2010 09:38 PM     Click Here to See the Profile for jimsz     Edit/Delete Message   Reply w/Quote
His autograph is legal to give away and trade. The patch with names or no names are legal to be sold. His information, especially if info on his space flights is also free game.

There is no way to put a positive spin in this for Mr. Aldrin.

As for another comment about his autograph I have no problem with him charging $0 or charging $1000.

Anything to do with his space flight I feel is out there for public use since he was a government employee doing a government job.

capoetc
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posted 12-30-2010 10:01 PM     Click Here to See the Profile for capoetc   Click Here to Email capoetc     Edit/Delete Message   Reply w/Quote
Might it possibly make sense to wait until the details of the complaint are known before jumping to conclusions?

When the details of the complaint in the McCandless case were released, the objections (for the most part) ceased almost immediately. As it turns out, McCandless actually did have a case.

Just sayin'...

mjanovec
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posted 12-30-2010 11:23 PM     Click Here to See the Profile for mjanovec   Click Here to Email mjanovec     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by capoetc:
Might it possibly make sense to wait until the details of the complaint are known before jumping to conclusions?

The correspondence in the PDF files that Robert linked to summarize the nature of the dispute between Aldrin and Topps...and contain the basic arguments of each party.

Patch_Designer
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posted 12-31-2010 01:23 AM     Click Here to See the Profile for Patch_Designer   Click Here to Email Patch_Designer     Edit/Delete Message   Reply w/Quote
Just curious, no one has mentioned Armstrong's rights as the photographer. I know that not only do you have to get a model's permission to use a photo, but you also have to secure the rights from the photographer. Does Armstrong have a case to pursue here as well?

Robert Pearlman
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posted 12-31-2010 01:58 AM     Click Here to See the Profile for Robert Pearlman   Click Here to Email Robert Pearlman     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by Patch_Designer:
Does Armstrong have a case to pursue here as well?
No, because this is not a case involving copyright.

When permission of the photographer is sought, it is because it is presumed the photographer owns the photo. In the case of NASA photographs, the space agency owns the photo but does not claim copyright. That however, does not negate the rights of those pictured.

Michael Ritter
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posted 12-31-2010 10:02 AM     Click Here to See the Profile for Michael Ritter   Click Here to Email Michael Ritter     Edit/Delete Message   Reply w/Quote
As far as I know, Topps only pays the professional ball players a few hundred dollars for their consent to be on baseball cards. After reading through the pdfs it seems like Topps might have offered Buzz a few hundred dollars for the use of his likeness and he turned it down, most likely for a larger dollar figure. Without knowing the details it is hard to speculate who is in the wrong here, Topps for not offering enough or Buzz for asking for too much.

capoetc
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posted 12-31-2010 11:55 AM     Click Here to See the Profile for capoetc   Click Here to Email capoetc     Edit/Delete Message   Reply w/Quote
Well, I guess some might argue that he ought to allow this issue to pass without defending his rights under law, but according to the documents there have been over 100 previous infringements successfully pursued for Dr. Aldrin.

Maybe it is about the money, just as it may have been about the money when the Irwin family pursued similar cases. And Nancy Conrad. And Neil Armstrong. And Bruce McCandless. And, well ... you get the picture.

I guess I'll conclude by saying, let he who would pass up the opportunity to defend himself similarly cast the first stone.

mjanovec
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posted 12-31-2010 07:23 PM     Click Here to See the Profile for mjanovec   Click Here to Email mjanovec     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by capoetc:
Maybe it is about the money, just as it may have been about the money when the Irwin family pursued similar cases. And Nancy Conrad. And Neil Armstrong. And Bruce McCandless. And, well ... you get the picture.

Armstrong's lawsuit against Hallmark likely wasn't about the money, as Armstrong donated the settlement to Purdue University.

AJ
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posted 12-31-2010 08:37 PM     Click Here to See the Profile for AJ   Click Here to Email AJ     Edit/Delete Message   Reply w/Quote
Let's remember that in the case of McCandless and Dido, from what I recall he was indeed identified in the liner notes and was due to be compensated, but wasn't. It was a failure to pay up and I can't blame McCandless for that. In this instance, it would seem that Topps attempted to work out a deal with Buzz, didn't even get that far, and went ahead with their product. On the one hand, Topps was probably wrong to just go ahead with their marketing scheme and I'm not surprised Buzz is pissed. On the other hand, I personally think Buzz needs to learn to pick his battles and consider his place in history. Sometimes we all just need to take a step back and take a good long look at ourselves.

capoetc
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posted 12-31-2010 08:57 PM     Click Here to See the Profile for capoetc   Click Here to Email capoetc     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by AJ:
... On the other hand, I personally think Buzz needs to learn to pick his battles ...

A question for the lawyers out there ... if you decide to "pick your battles" with regard to protecting the rights to the use of your image, does that set a precedent for others to then also use your image without compensation?

The fact that Topps apparently tried to compensate Aldrin would seem to indicate that even they knew he was due compensation for the use of his image.

mjanovec
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posted 01-02-2011 02:10 AM     Click Here to See the Profile for mjanovec   Click Here to Email mjanovec     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by capoetc:
A question for the lawyers out there ... if you decide to "pick your battles" with regard to protecting the rights to the use of your image, does that set a precedent for others to then also use your image without compensation?

Not necessarily. Buzz could have written a letter asserting his control over the use of that image for commercial purposes, but could have granted them use of that photo for little or no compensation. As long as he asserts what he believes to be his rights, he should be able to set whatever price he wishes for commercial use of his image.

Interestingly, I was watching an episode of Mythbusters today that had a life size cutout of the Aldrin visor photo in the background (standing among the other stuff in their shop). Since Mythbusters is a commercial program, I wonder if Buzz has an agreement with them and/or whether he has an issue with them displaying that image. (Of course, there was also the episode where they debunked a conspiracy theory surrounding another photo of Aldrin descending the ladder of the LM. I wonder what, if any, compensation was negotiated for that usage.)

Robert Pearlman
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posted 01-02-2011 04:44 AM     Click Here to See the Profile for Robert Pearlman   Click Here to Email Robert Pearlman     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by mjanovec:
...had a life size cutout of the Aldrin visor photo in the background
That cutout was a licensed product (as confirmed by the company that produced it). At one time, it was even offered for sale through Aldrin's own website.
quote:
I wonder what, if any, compensation was negotiated for that usage.
I believe that Mythbusters use of the photo falls under the same protections that allow school text books to display photos of identifiable people without license -- the same protections that Topps is claiming in this case.

Mythbusters is a commercial production but one would be hard pressed to establish a direct connection between their use of Aldrin's image and a commercial purpose, which is what is required to claim rights of publicity under the California civil code.

In Topps' case, according to Aldrin's attorney, the commercial purpose is marketing.

RPF09
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posted 01-04-2011 08:19 AM     Click Here to See the Profile for RPF09   Click Here to Email RPF09     Edit/Delete Message   Reply w/Quote
You only have to look at the numerous items sold on various official outlets to see that the baseball card, in my humble opinion, is simply another piece of cheap merchandise (“tat” would be the unkind English slang word) to gain profit. Given everything other piece of merchandise this particular image is produced on, I cannot see any realistic or significant objection to it.

Of course if the image were portrayed on some grossly offensive material / item, then I would agree to an objection, but what is so special about a piece of card given the numerous other piece of merchandise you can buy like this?

Robert Pearlman
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posted 01-04-2011 08:33 AM     Click Here to See the Profile for Robert Pearlman   Click Here to Email Robert Pearlman     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by RPF09:
...what is so special about a piece of card given the numerous other piece of merchandise you can buy like this?
The other merchandise (presumably) has Dr. Aldrin's permission and/or license.

GreenLight, the same company that manages the rights for the estates of Albert Einstein, the Wright Brothers and Thomas Alva Edison, manages Aldrin's licensing.

onesmallstep
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posted 01-04-2011 04:54 PM     Click Here to See the Profile for onesmallstep   Click Here to Email onesmallstep     Edit/Delete Message   Reply w/Quote
Well, this is certainly one debate that could go either way: if you're for Aldrin and his court case, you support his right to a fair compensation for the use of his image; on the other hand, as, in effect, a member of the military seconded to NASA at the time of Apollo 11, didn't he waive all 'rights' for use of his image as taken by government employees (i.e. Armstrong and others)? As there are many collectibles with his likeness already out there, this suit is mainly for future products-can you imagine suing to demand payment/royalties retroactively?(!). After all, many Apollo-Shuttle-ISS astronauts are depicted on souvenirs that bear their likeness, taken by NASA photographers, and I don't see them lining up to sue (maybe they're waiting for this one high-profile case to go forward).

Again, it may be that there are just so many lawsuits already over matters big and small (full disclosure: I work at a law firm), but Aldrin's place in history is secure without his elbowing for more publicity-good or bad. It's his right-and time-of course. I wonder, also, if he's doing this to insure his image is 'protected' after his lifetime and to benefit any heirs.

Robert Pearlman
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posted 02-10-2011 02:36 PM     Click Here to See the Profile for Robert Pearlman   Click Here to Email Robert Pearlman     Edit/Delete Message   Reply w/Quote
On Feb. 9, 2011, Buzz Aldrin's counsel filed a Consent to Proceed to waive his right to proceed before a District Judge and consent to have the assigned Magistrate Judge Suzanne H. Segal conduct all further proceedings in the case, including trial and entry of the final judgment.

albatron
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posted 02-10-2011 03:15 PM     Click Here to See the Profile for albatron   Click Here to Email albatron     Edit/Delete Message   Reply w/Quote
Interesting. I wonder, how many other astronauts seeks to maintain their rights over their image or photography?

Checking with an attorney, Neil actually may have a suit if it's recognized that he is the photographer, in much the same way Buzz is asserting his rights, should Neil proceed to maintain the rights to them.

This is very tricky, and differs from state to state and Federally as well.

Nonetheless, is it only Buzz? McCandless was brought up but as Aurora correctly pointed out that was a failure to pay an agreed upon contract.

Robert Pearlman
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posted 02-10-2011 03:25 PM     Click Here to See the Profile for Robert Pearlman   Click Here to Email Robert Pearlman     Edit/Delete Message   Reply w/Quote
My understanding is that Armstrong would only have rights as the photographer if he held the copyright. In the case of all NASA photos, the space agency owns (but does not assert in most cases) copyright.

A number of astronauts have protected their rights to publicity (or similar legal standing), though their activities have not all been made public (they did not involve the judiciary system).

About ten years ago, I worked with an ad agency who wanted to use imagery picturing a wide array of astronauts. I reached out to each: some didn't care, some wanted to be compensated, and some only wanted to be acknowledged by name.

albatron
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posted 02-10-2011 06:27 PM     Click Here to See the Profile for albatron   Click Here to Email albatron     Edit/Delete Message   Reply w/Quote
And Buzz doesn't hold a copyright either. Now he can get away with it because he is linked to the image. But the famous image of Buzz, Neil is also linked to it as the photographer. This is how Neil could assert his rights - according to my legal source.

And we can only speculate who has, since NO one knows for sure, all of them.

Hence my question - does anyone KNOW who has by virtue of news coverage of them going after people as Buzz is?

In regards to your last para, I am betting none of them have like Buzz has.

Robert Pearlman
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posted 02-10-2011 09:13 PM     Click Here to See the Profile for Robert Pearlman   Click Here to Email Robert Pearlman     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by albatron:
Now he can get away with it because he is linked to the image.
Aldrin can make a claim because he is identifiable in the image (due to his name tag being visible and readable). There are other photos of Aldrin on the moon for which he has no say.

As for Armstrong, he (and his counsel) are not shy about halting the commercial use of his image (and name, voice, etc.) so he is clearly well aware of what he can and cannot legally claim.

quote:
In regards to your last para, I am betting none of them have like Buzz has.
Given Aldrin's place in history, his name being recognizable as a result, and the number of photos of him that are now considered iconic, I think you would be hard pressed to name another astronaut who is in his same position -- with the admitted exceptions of Neil Armstrong (sans photos) and John Glenn.

Robert Pearlman
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posted 11-08-2011 09:55 AM     Click Here to See the Profile for Robert Pearlman   Click Here to Email Robert Pearlman     Edit/Delete Message   Reply w/Quote
The Los Angeles Times reports that Buzz Aldrin's lawsuit against Topps, Inc. has been dismissed by a judge.
U.S. District Judge Dean D. Pregerson ruled that Topps' use of photographs from the Apollo 11 mission was protected as "free speech of an issue of public interest." He dismissed the lawsuit Sept. 27.

Aldrin has appealed to the U.S. 9th Circuit Court of Appeals.

"We believe that the federal trial court's ruling could effectively end California's well-established and statutory right of publicity law as it affects the use of celebrity images on trinkets such as plates, pencils, trading cards and the like," Aldrin's attorney, Robert C. O'Brien, said. "Accordingly, Dr. Aldrin has appealed the ruling to the 9th Circuit. He is hopeful for a positive result from the appeals court."


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