Cardtoons, L.C. v. Major League Baseball Players Association
95 F.3d 959 (1996)
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Rule of Law:
The First Amendment right to free expression, particularly through parody and social commentary on public figures, outweighs a celebrity's statutory right of publicity.
Facts:
- In late 1992, Cardtoons, L.C. formed to produce parody trading cards featuring caricatures of major league baseball players.
- Cardtoons contracted with artists and a writer to design a set of 130 cards that used similar names, recognizable caricatures, and team colors to lampoon active players.
- The cards provided humorous commentary on the players, mocking them for their substantial salaries, narcissism, and on-field behavior.
- Each card, except for one type, included a disclaimer stating: 'Cardtoons baseball is a parody and is NOT licensed by Major League Baseball Properties or Major League Baseball Players Association.'
- After designing the cards, Cardtoons placed an advertisement in Sports Collectors Digest to market them.
- The Major League Baseball Players Association (MLBPA), which holds the exclusive publicity rights for all active players, saw the advertisement.
- MLBPA's attorney sent cease and desist letters to Cardtoons and its printer, Champs Marketing, Inc., demanding they stop production.
- Following receipt of the letter, Champs Marketing, Inc. informed Cardtoons it would not print the cards until a court determined they were legal.
Procedural Posture:
- Cardtoons, L.C. filed suit in the U.S. District Court for the Northern District of Oklahoma against the Major League Baseball Players Association (MLBPA), seeking a declaratory judgment that its parody cards were lawful.
- MLBPA filed a counterclaim for violation of its members' right of publicity under Oklahoma law.
- The district court referred the case to a magistrate judge, who issued a Report and Recommendation in favor of MLBPA.
- The district court initially adopted the magistrate's report and ruled for MLBPA.
- Subsequently, the district court vacated its own decision and issued a new opinion granting a declaratory judgment in favor of Cardtoons, holding that the cards were a protected parody.
- MLBPA, as the defendant-appellant, appealed the district court's final judgment to the U.S. Court of Appeals for the Tenth Circuit.
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Issue:
Does the First Amendment right to create and distribute parody trading cards featuring caricatures of major league baseball players outweigh the players' statutory right of publicity under Oklahoma law?
Opinions:
Majority - Tacha, Circuit Judge
Yes, the First Amendment right to create and distribute parody trading cards outweighs the players' statutory right of publicity. The court conducted a three-part analysis. First, it found the cards did not violate the Lanham Act because their parodic nature made any likelihood of consumer confusion negligible; their success depended on the humorous difference from, not confusion with, official cards. However, the court determined the cards did infringe upon the players' right of publicity under Oklahoma's statute by knowingly using their likenesses on a product without consent. Second, the court held that the cards were a form of non-commercial speech fully protected by the First Amendment, as they provide social commentary on public figures through parody, a traditionally protected form of expression. The fact they are sold for profit does not diminish their protection. Finally, the court balanced these competing interests. It rejected an 'alternative avenues' test and instead weighed the value of the speech against the interests underlying the right of publicity. The court concluded that the public's interest in parody and social criticism of celebrities is substantial, while the justifications for the right of publicity—such as providing economic incentives for achievement or preventing unjust enrichment—are significantly weaker in the context of parody, where the creator adds their own substantial creative element. Thus, Cardtoons' First Amendment rights prevail.
Analysis:
This decision significantly strengthens the position of parody as protected speech against claims based on the right of publicity. By rejecting a less-speech-protective 'alternative avenues' analysis and opting for a direct balancing test, the court established a high bar for public figures seeking to suppress caricature or criticism. The case clarifies that the right of publicity, unlike copyright, does not have a built-in 'fair use' doctrine, forcing a direct constitutional inquiry that often favors free expression. This precedent limits the ability of celebrities to use publicity rights as a tool to censor mockery and ensures that parodists have access to the 'raw material' of celebrity identities for social commentary.
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