> If it were a counterfeit version of the trading card, it would be an obvious legal violation. But this appears to be a photo of the trading card that’s printed. No reasonable buyer would believe this is the original trading card.
> Upper Deck nevertheless seeks to enforce its IP rights in the print, both in the Michael Jordan imagery (it received via a license) and its hologram mark (the black shape in the upper left of the print–see the outline from the trademark registration).
Isn't this just straightforward copyright infringement? A photograph of a rookie card is a derivative work.
The original is presumably still under copyright. It's not reproduced for criticism, news reporting or parody where fair use would come into play. It's not subject to freedom of panorama, as a photo of a building or public statue might be. It's not an incidental inclusion, like a photograph of a celebrity wearing a shirt with a copyrighted design. The reproduction is clearly commercial, and reproduces a large portion of the copyrighted work. The usage isn't transformative commentary, like a Warhol painting of a Campbells Soup can might be.
Seems to me none of the factors that would make an unauthorised reproduction legal apply here.
The second question seems legally interesting, since trademarks generally aren’t copyrightable, but are an entirely different protected class, which prohibits using in any form to deceive the consumer. But a photograph of a hologram which is obviously not holographic doesn’t seem like an attempt to deceive the consumer, so it could be legal
Though overshadowed by your larger point that unauthorized reproduction of the rest of the creative work seems to be simple copyright infringement
> If it were a counterfeit version of the trading card, it would be an obvious legal violation. But this appears to be a photo of the trading card that’s printed. No reasonable buyer would believe this is the original trading card.
> Upper Deck nevertheless seeks to enforce its IP rights in the print, both in the Michael Jordan imagery (it received via a license) and its hologram mark (the black shape in the upper left of the print–see the outline from the trademark registration).
Isn't this just straightforward copyright infringement? A photograph of a rookie card is a derivative work.
The original is presumably still under copyright. It's not reproduced for criticism, news reporting or parody where fair use would come into play. It's not subject to freedom of panorama, as a photo of a building or public statue might be. It's not an incidental inclusion, like a photograph of a celebrity wearing a shirt with a copyrighted design. The reproduction is clearly commercial, and reproduces a large portion of the copyrighted work. The usage isn't transformative commentary, like a Warhol painting of a Campbells Soup can might be.
Seems to me none of the factors that would make an unauthorised reproduction legal apply here.
The second question seems legally interesting, since trademarks generally aren’t copyrightable, but are an entirely different protected class, which prohibits using in any form to deceive the consumer. But a photograph of a hologram which is obviously not holographic doesn’t seem like an attempt to deceive the consumer, so it could be legal
Though overshadowed by your larger point that unauthorized reproduction of the rest of the creative work seems to be simple copyright infringement
The full title is:
> What Does a Hologram Trademark Signify When the Hologram Isn’t There?–Upper Deck v. Pixels