Cardtoons v. MLBPA: Parody Trading Cards Beat the Right of Publicity

Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th Cir. 1996), is a landmark on the collision between the right of publicity and the First Amendment. Cardtoons, an Oklahoma company, produced a set of parody trading cards caricaturing famous major league baseball players — Barry Bonds became “Treasury Bonds,” Rickey Henderson became “Egotisticky Henderson” — accompanied by humorous commentary on the players and the business of baseball. The Major League Baseball Players Association, which licenses the players’ collective publicity rights, sought to block the cards under Oklahoma’s right-of-publicity statute. Writing for a unanimous Tenth Circuit panel, Judge Deanell Reece Tacha held that Cardtoons’ First Amendment right to free expression outweighed the union’s proprietary interest, and affirmed judgment for Cardtoons.

At a glance

• Case: Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th Cir. 1996), No. 95-5006
• Court: United States Court of Appeals for the Tenth Circuit, on appeal from the Northern District of Oklahoma
• Decided: August 27, 1996; unanimous panel
• Opinion: Judge Deanell Reece Tacha, for the panel (Tacha, Logan, and Reavley, of the Fifth Circuit, sitting by designation)
• Subject matter: Whether parody trading cards depicting major league players infringe the right of publicity or are protected speech
• Holding: The First Amendment right to publish parody and social commentary about celebrities outweighs the players’ Oklahoma right of publicity

The cards, the statute, and the posture

Cardtoons designed a 130-card set featuring 71 caricatures of active major league players, each paired with satirical commentary on the player’s career and the economics of the sport, along with humorous “Big Bang Bucks” cards lampooning baseball salaries. The cards were created by a political cartoonist, a sports artist, and a sports author, and were plainly intended as parody: no reasonable buyer would mistake “Treasury Bonds” tipping a batboy with a gold “Fort Knoxville Slugger” for anything but a joke at the players’ expense.

The Major League Baseball Players Association — the unincorporated players’ union that holds and licenses the athletes’ group publicity rights — threatened suit under Oklahoma’s right-of-publicity statute, Okla. Stat. tit. 12, § 1449(A), which bars the knowing use of another’s name or likeness on merchandise or in advertising without consent. Cardtoons filed a declaratory-judgment action. The district court held the cards were protected by the First Amendment, reading a parody exception into the statute, and the MLBPA appealed. The Tenth Circuit affirmed, though on a somewhat different rationale — it concluded the statutory elements of infringement were technically satisfied but that the First Amendment supplied a complete defense.

Balancing expression against the right of publicity

Rather than shoehorn the cards into one of the statute’s enumerated exceptions, the court engaged in an explicit balancing of Cardtoons’ expressive interest against the interests underlying the right of publicity. On the speech side of the ledger, the court found the cards richly expressive. “The cards provide social commentary on public figures, major league baseball players, who are involved in a significant commercial enterprise, major league baseball.” Parody, the court explained, is “a valuable form of self-expression that allows artists to shed light on earlier works and, at the same time, create new ones,” and a parody of a celebrity “does not merely lampoon the celebrity, but exposes the weakness of the idea or value that the celebrity symbolizes in society.”

On the other side, the court examined the standard justifications for the right of publicity — providing an economic incentive to invest in one’s persona, preventing unjust enrichment, protecting consumers from deception, and safeguarding dignitary interests — and found each weak as applied to celebrity parody. Star athletes already have ample incentive to excel; parody by definition does not deceive consumers into thinking the celebrity endorses the product; and the cards did not usurp a market the players would otherwise exploit, since celebrities rarely license unflattering caricatures of themselves. Weighing the high expressive value of the cards against these attenuated interests, the court held the balance tipped decisively toward free speech: “Because Cardtoons’ First Amendment right to free expression outweighs MLBPA’s proprietary right of publicity, we affirm.”

Why commercial sale did not defeat the defense

The MLBPA emphasized that Cardtoons sold the cards for profit, urging that they were commercial products stripped of full protection. The court rejected that framing. The mere fact that expression is sold does not convert protected parody and commentary into unprotected commercial speech; books, newspapers, and films are all sold for profit yet remain fully protected. What mattered was the communicative character of the cards, which the court described as “an important form of entertainment and social commentary that deserve First Amendment protection.” The right of publicity, the court cautioned, cannot be wielded to suppress unflattering but constitutionally protected commentary simply because the speaker also seeks to make money.

That distinction is central to Cardtoons’s enduring influence. It refuses to treat a celebrity’s economic interest in her persona as an automatic trump over expressive uses, and it recognizes that parody — precisely because it is often unwelcome to its target — needs breathing room that a licensing regime would never voluntarily grant.

Open questions

Cardtoons announced a balancing approach but did not supply a mechanical test, and courts have since diverged on how to weigh publicity rights against speech. Some jurisdictions, particularly California, adopted the more structured “transformative use” test from Comedy III Productions v. Gary Saderup; others use a “relatedness” or Rogers v. Grimaldi framework; still others follow Cardtoons’s open-ended balancing. How much a use must comment on, rather than merely exploit, a celebrity remains contested. The opinion also contains extended dictum questioning whether the right of publicity serves any strong public interest at all — reasoning that later courts have cited but not uniformly embraced.

Implications

• Parody of celebrities is strongly protected. Satirical commentary that targets a public figure’s persona or the values she symbolizes enjoys robust First Amendment protection against publicity claims.
• Selling the parody does not forfeit protection. Expression does not become unprotected commercial speech merely because it is sold for profit.
• Publicity interests are weakest against non-deceptive commentary. Where a use does not falsely imply endorsement or usurp a licensable market, the justifications for the right of publicity carry little weight.
• Balancing, not bright lines, governs in many courts. Cardtoons remains a leading model for ad hoc weighing of speech against publicity, alongside the transformative-use and Rogers tests used elsewhere.

Frequently asked questions

What did Cardtoons v. MLBPA decide? The Tenth Circuit held that Cardtoons’ parody baseball trading cards were protected expression under the First Amendment, and that this expressive value outweighed the Major League Baseball Players Association’s right of publicity under Oklahoma law. The cards therefore did not infringe the players’ publicity rights, even though they used recognizable caricatures and names.

How did the court weigh parody against the right of publicity? The court applied an ad hoc balancing test rather than fitting the cards into a statutory exception. It found the economic and non-economic justifications for the right of publicity were weak as applied to celebrity parody, while the cards’ value as social commentary and self-expression was high, so the First Amendment prevailed.

Were the cards commercial products? Yes, the cards were sold for profit, but the court held that did not strip them of protection. Parody and social commentary do not lose First Amendment protection merely because they are sold, and the court treated the cards as an important form of entertainment and commentary rather than ordinary commercial speech.

Authorities and sources

• Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th Cir. 1996), No. 95-5006 (decided August 27, 1996). Justia; official Tenth Circuit opinion (govinfo.gov).
• Additional full-text and headnotes via Leagle.
• Case background and holding cross-checked at Wikipedia: Cardtoons, L.C. v. Major League Baseball Players Ass’n.