Topps Strikes Blow for First Amendment
One of my favorite clients has just won a courtroom battle with ramifications far beyond the trading cards at issue in the lawsuit. Indeed, its victory is literally historical, since the case addresses the issue of who owns great moments in history: the participants or the public?
Here, that great moment in history took place on July 21, 1969. That's when astronauts Neil Armstrong and Edwin "Buzz" Aldrin, Jr. climbed down from their Apollo 11 lunar module and became the first humans to walk on the Moon.
Armstrong captured that moment with his camera, pointing it toward Aldrin and snapping what has since become the most famous space-related photograph of all time, the iconic Visor Shot. This year, however, that same image was the focus of Aldrin v. The Topps Company, Inc.., Case No, CV 10-09939 (C.D. Cal. 9/27/2011)., where the issue was whether Buzz Aldrin's right of publicity trumped Topps' right to portray his historical moment on a trading card.
Two years ago, Topps released one of its American Heritage trading card sets, the "American Heroes Edition." Among the hundreds of trading cards featuring American heroes of all walks of life was a group of 28 Heroes of Spaceflight, including Buzz Aldrin. There was also a Gemini XII card that listed the mission dates and crew (which included Aldrin). On the back of that card was a description of the mission that, among other things, featured "astronaut Buzz Aldrin's smooth, multi-tasking 140-minute space walk."
Finally, and from Aldrin's perspective, most damningly, the series was packaged in a box that bore three images: Abraham Lincoln (captioned "Abraham Lincoln") , Mickey Mantle (captioned "Mickey Mantle"), and the Visor Shot (captioned "Moon Landing Apollo 11"). Although the astronaut is not identified in the caption, if you examine the spacesuit closely you can make out the name "E. Aldrin."
Aldrin sued Topps for violating his right of publicity, unfair competition, and unjust enrichment. Topps responded by filing a motion to dismiss under California's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, which allows the court to dismiss a lawsuit at the outset if it determines that the actions challenged in the lawsuit--here, using the Visor Shot and Aldrin's name in its American Heroes Edition--are actions arising from the defendant's right of free speech. Cal. Cod. Civ. Pro. sect. 426.16(b)(1).
In a succinct First Amendment ruling, District Judge Dean Pregerson dismissed Aldrin's lawsuit, holding:
Because Topps has met its burden to demonstrate that Aldrin’s claim arises out of protected speech related to a public issue, the burden now shifts to Aldrin to show a likelihood of success. Aldrin has not met this burden. His arguments regarding the legal sufficiency of his claim are premised on the contention that Topps’s use of the images constitutes unprotected commercial speech. As discussed above, the images are not commercial speech, and have been utilized in furtherance of Topps’ First Amendment rights. Accordingly, Aldrin has not shown that his complaint has merit.
Kudos to Topps for taking on this important battle, and kudos to L.A. attorney Al Wickers for shepherding this case to victory.
Pete Salsich III is an occasionally accomplished illustrator and relatively weak guitar player whose secret identity is that of an
Geoff Gerber keeps waiting for his superpowers to materialize. In the meantime, he uses his lawyer-powers to litigate intellectual property
Michael A. Kahn concentrates his practice in copyright, trademark, First Amendment and media law (libel, privacy rights). He is