When I closed out my last blog, I said that I had two theories remaining of what Upper Deck would do in response to archrival Topps getting an exclusive license from Major League Baseball to produce cards next year. I suppose that’s technically accurate, but I don’t really believe there’s any chance of the final solution, which would be Upper Deck simply giving up and quietly walking away from the arena, so to speak.
I’ve only met Richard McWilliam (Upper Deck CEO) a couple of times, so I can hardly claim to have an inside track on what he might do, but from everything I’ve heard or read, it’s hard to imagine that happening.
So here’s the angle I really like the best, assuming that for whatever reason Upper Deck isn’t able to get an injunction to put the Topps exclusive arrangement on hold while it wades its way through the courts. Why wouldn’t Upper Deck simply go about business as usual, putting out its planned February 2010 First Series precisely as it's drawn up?
That has a lot of appeal, most cogently because it would be the least disruptive (i.e. expensive) from a production standpoint. It would presumably lead to a monumental legal challenge – perhaps the more protracted the better – in which the underpinnings of the licensing reach and scope would be tested.
I’m not so sure that the parameters of what is permissible with licensing from a major professional sports league is all that crystal clear. What a license provides a manufacturer from a players association seems a little more clear cut, what with court decisions for 100 years or so delineating rights of publicity, etc., but the business of logos and uniform indicia is a lot murkier.
I concede that legal questions don’t necessarily get hung up on fairness issues, but if I were paying a whole bunch of money to the MLBPA for the use of the players’ likenesses, I don’t think I’d be too thrilled to be told I had to picture them in their jammies.
But that’s just me.
