Gellman at SCU has been posting about the lawsuit and today stated that he might have been an alarmist about the whole thing. UD sure is pushing the envelope here and Gellman is right, they may be in some deep crapola.
Here is the injunction brief by Upper Deck.
I'm going to try and make this as simple as I can. I'm not a copyright lawyer but some general concepts apply. Basically, any logos in the pictures of the cards are incidental to the product.
Accounts of the game:
You know that language at the end of or during the game that goes : "Any rebroadcast, retransmission, or account of this game, without the express written consent of MLB" Yeah. well Major League Baseball is full of shit on that one. Rebroadcast yes, Retransmission yes, accounts of the game? An emphatic NO!
It's called news people. Newspapers, news broadcasts can certainly talk about what happened in the game. I don't know why MLB even puts that in there. Some dumbass lawyer that thought it sounded good probably. So accounts of the game are fair game unless you appropriate someone else's account as your own then you have a problem.
What about the statistics?
The quick answer is no. Statistics are facts and are thus not copyrightable (subject to copyright) if that is even a word.
So far we have a card with statistics on it.
What about the players names and using them to make cash?
Upper Decks got that covered Y'all! Some smart lawyer figured out that MLBPA was the key. The player through MLBPA is allowing their likeness to be used. UD might still be ok without the MLBPA, but their fight is much easier with the rights they secured.
So now we have a card with stats, accounts of a game and the player's picture.
What about players in their uniforms with logos showing? Now we are to the meat of the issue. This is the only real issue in the case as all of the other bases are covered.
To simplify this I am going to call this the Newspaper defense. Assuming UD secured the rights to the photograph, there is no difference in what UD is doing to what a newspaper does. UD is "reporting" what the player's statistics were for the past year and the previous years. Just like a newspaper, UD is selling their reporting for money. Sometimes they include autographs and pieces of jerseys and such on their "reports". There are no logos on the cards other than what are contained in the photos and their use in the photos is incidental.
UD could probably use the names of the teams on their cards as well. It is a fact that Manny Ramirez plays for the Los Angeles Dodgers. There is no logo being used to show that the cards are endorsed by MLB.
That's the next issue is dilution of the copyright, etc. Dilution means to basically reproduce the copyright, trademark so it becomes worthless to the holder. Producing hats with the logo on it would be taking dollars away from MLB who owns that logo. What is the distinction you ask? UD isn't reproducing the logos that are on the uniforms as the centerpiece of the card like they are on a jersey or hat that one would reproduce to sell just like a newspaper that runs a photo of Jeter from the World Series. They aren't selling the logo, just the news that goes along with it. For examples of what MLB has done on this front see here note the main concern was with audio and such, also see here note this is all a discussion about how the pictures can be used on the internet and other things and not in newspapers.
The result of the links is that MLB is on shaky ground and realizes that they can only enforce certain limitations through contract and not copyright law. That's my point, there is no copyright violation here because of the way UD went about this. They are no different than a newspaper to a degree and if MLB thinks they can keep newspapers from posting things on the internet, they are dead ass wrong. Bloggers just haven't had the money to fight Selig and his money grubbing cronies.
Plus UD has tried to make sure their is no confusion and that's why blog articles were used. Everyone at this point, or at least anyone that has half a brain and pays attention, knows taht UD lost thier license and have plastered it on their packaging, thus there is no confusion or at least there shouldn't be.
The above is surely not a legal treatise but hopefully it gives you an idea as to what arguments can be made. With the backlash that has come to the RIAA over copyright infringement and being as heavy handed about enforcement as they are I would suspect there are many judges that wouldn't think twice about dismissing the suit. And, DMCA RIAA is much clearer than in this situation.