Recently Topps filed a lawsuit against Leaf because of the inclusion of graded Topps cards in Leaf's Best of Baseball release. Leaf and Brian Gray have responded according to the Facebook page:
Leaf Trading Cards, LLC has filed a counterclaim against The Topps Company, Inc. seeking a declaratory judgment, actual damages, punitive damages, attorneys’ fees, and costs. These claims were filed along with an answer to Topps’ complaint in the U.S. District Court for the Southern District of New York regarding the marketing and sale of Leaf’s 2011 “Best of Baseball” product. Brian Gray, Leaf’s President stated that “Leaf respects the intellectual property rights of its competitors, but Topps’ lawsuit is a wrongful attempt to exercise monopolistic control in the trading card industry. Leaf is entitled to advertise products by displaying images of products that we legally acquired and are entitled to sell. We are confident that the court will vindicate our business practices.”
Being a graphic designer I have worked with copyrights, I have copyrighted designs and I have worked with copyrighted images and graphics both in personal projects as well as “Work for hire” projects. I actually just did a study and research paper recently on the copyright laws in comparison to public-domain and fair use laws in regards to artistic work.
The problem that Topps will have is that Leaf is not advertising that they created the Topps product nor are they including the name Topps in any of the pre-sales information/copy. They even clearly state “Graded” and “Graded/Slabbed” and do not list any corporate names. Yes they do include images of the Topps cards (which may be a sticking point for Topps) but they purchased these cards on the secondary-market and as an end-user have the legal right to sell them as long as the product is represented properly. Think of this as you selling a Topps card on eBay, you can list Topps in the title and description and you can include an image of the card as long as you do not attempt to make claim to creating the design or create a new product and list it as a Topps creation.
The only thing that may come out of this, on Topps side, would be the requirement that Leaf remove any images of Topps product from their sales materials but I would be floored if a judge issues an order halting Leaf from selling the product or removing Topps cards from the release. If anything harsher were to happen it would set precident that potentially could handcuff dealers, retailers and even people selling items on eBay or at auction. We would be at the mercy of Topps’ legal team, which could get as bad as an Orwellian society forcing us to request permission to list a Topps product for sale.