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Sunday, August 14, 2011

A Comment on Topps vs. Leaf

Read the original story here.

If you don't feel like reading the article (or want to know what it's about before you follow the link), Topps is suing Leaf for advertising old Topps cards on its buyback product Best of Baseball's sell sheet.
Beardy's Monopoly set humor seems to be more and more accurate as time goes by. I like Topps products, and I buy a little of every set that comes out (I guess I have to for my type collection, but I probably would anyway). But it seems that Topps is acting more and more like a three year old going through the "mine" stage. Every product that comes out that doesn't have Topps' logo on it seems to receive a lawsuit of some kind.

I understand Topps wants to protect its exclusivity agreement with MLB. I'm sure it cost them a fortune. I'm not the biggest fan of monopolies- you need choices (Coke vs. Pepsi, Kelloggs vs. Post, Dominos vs. good pizza), but I'm not really here to argue that point. I'm looking more this time at the product itself.

The Best of Baseball product is half buyback product and half cut autograph product. The whole set is essentially aftermarket purchases repackaged with a Leaf logo. The cut auto checklist includes Hank Aaron and Sandy Koufax, both of whom are Topps spokesmen now, but with a cut auto that signature was probably made a decade or more ago - or maybe Leaf employees caught up with the player at a recent show. But face it, cut autographs are rarely approved by the signer, and originated from the fact that some stars either can't or won't sign for a company.

But let's focus on the buyback stuff here. Topps is suing because its cards - purchased on the secondary market by Leaf - are advertised on a sell sheet. Have we seen that anywhere else?
Does anybody remember the TriStar product Hidden Treasures? I believe it still exists today, though it focuses on baseballs instead of cards. This particular package advertises the T206 Wagner, but there was a future/earlier release that featured a Mickey Mantle '52 Topps rookie. Ahh, found it:
Did Topps sue TriStar then? Is Topps suing all those other aftermarket manufacturers who make jumbo 100-card packs with a Topps card showing in the front? Does Topps sue those companies that buy back all the unsold packs of 2007 Topps and repackage them in their 8-pack hanging boxes?

What about all those dealers that advertise Topps products in magazines, flyers, and online? How about the eBay sellers with scans in their listings? What about all the bloggers who use images of Topps products to talk about how great the cards are?

I'm not a lawyer, but I don't think you have to be to realize that 1) Leaf isn't manufacturing baseball cards, but repackaging a combination of products for resale on the after-market, 2) this has been going on for years (at a benefit to the Hobby, really - the TriStar packs brought national attention), and Topps only now has decided to do something about it, and 3) I don't believe any company has the right to dictate what happens to its products after they've been sold, other than copyright.

Looking at the Topps lawsuit, it looks mainly to be going the copyright route. Is Leaf actually copying anything here? They're using images of Topps cards in the sell sheet, but they aren't reproducing any products,   just reselling them. The lawsuit mentions the term buybacks, because it is an accepted part of the hobby. We all know courts aren't necessarily guided by common sense, but using a bit of common sense I think we can see that Leaf isn't reproducing anything in a way that would violate copyright. The sell sheet is simply an advertisement for a product that contains Topps cards.

The other point Topps is hoping to raise is the exclusivity agreement with several of the players (especially Ruth, Mantle, and Strasburg). But looking at the bulk of the lawsuit, this isn't a major factor they seem to be fighting.

It seems that Topps is focusing on the sell sheet as violation of their copyrights. Again, I bring up the points above - Leaf is selling Topps products (and others, including Upper Deck), but they aren't manufacturing them, simply repackaging them in a buyback product. And by nature, the '52 Topps Mantle, '10 Bowman Chrome Strasburg autograph, '11 Harper autograph, and other cards shown are iconic cards, and any advertisement will highlight the best of what's in the product.

Buyback products have been around since at least the 1990s, advertised in various manners, some featuring images of prior Topps products. Have you ever been "confused" by a buyback product? Did you ever look at a pack of TriStar Hidden Treasures and think it was made by Topps, because that card was on the front of the pack? Or maybe it was made by a tobacco company, because of all those pre-war cards shown in the other release. Given the price of the product - $200+ per pack, it's even less likely to confuse people, because the only ones spending that much on the product know that it's a buyback product.

I hope Leaf fights this one through. I don't think Upper Deck had much ground to stand on when it copied card designs, and later when it used MLB logos, because it manufactured a product that violated copyright laws and licensing agreements. Buyback products aren't manufactured, simply repackaged, and a sell sheet advertising that product can not and should not be considered manufacturing a product that copies someone else's works.

Again, what's to stop Topps from suing a dealer who puts images of Topps products in its advertisements? Let's say Topps begins a program similar to Upper Deck which restricts who can sell its products (again, seems illegal to me), and a dealer advertises a Topps product - new or old - and uses an image of that product. Under precedent from this case, it seems that Topps would have the makings of another lawsuit.

Topps, I love you, but please please stop making moves like this. You had your points with Upper Deck, but leave Leaf alone. I'm sick of hearing the word "confusion" in regards to baseball card products, and if you really think collectors are so stupid as to think that this product was put out by Topps, then you must think we're all pretty stupid in general, and that's a bad place to put yourself.

Chime in on your thoughts. Does Topps have a case here? Is Topps being a crybaby? Or should Topps pursue this case to its conclusion?


  1. This is the kind of stuff that makes me buy a pack of Goodwin instead of A&G.

  2. Topps uses Tri-Star for redemption fulfillments so there's no way they would file a lawsuit against them. It's probably in the contract with Tri-Star.

  3. Is that the same TriStar though, an offshoot of the original TriStar, or a company that just happens to have the same name?

    The TriStar packs came out in the '90s, I believe, which was back when Topps wasn't so litigious.