Allison v. Vintage Sports Plaques

Elisa Allison (plaintiff) was the widow of Clifford Allison, a famous racecar driver. Maxx Race Cards (Maxx) had a licensing agreement with Clifford’s estate to make and sell trading cards featuring Clifford. Clifford’s estate received royalties from all trading card sales. Orel Hershisher (plaintiff) was a famous baseball player who had a licensing agreement with Major League Baseball Players Association (MLBPA). Hershisher received royalties for all products MLBPA sold using his name or likeness, including trading cards. Vintage Sports Plaques (Vintage) (defendant) purchased licensed trading cards, mounted the cards in frames or on clocks, and then resold the mounted cards. Vintage did not alter the trading cards. Vintage did not have a licensing agreement with either Clifford’s estate or Hershisher and did not pay royalties. Elisa, on behalf of Clifford’s estate, and Hershisher sued Vintage for violating their rights of publicity and sought injunctive relief. Vintage moved for summary judgment. The district court granted Vintage summary judgment, holding that the first-sale doctrine applied because Vintage was reselling legally purchased, mounted trading cards, not misappropriating Clifford’s or Hershisher’s likeness to sell frames and clocks. Elisa and Hershisher appealed, arguing that the first-sale doctrine should not apply to the right of publicity because the right of publicity protects a person’s identity.