Well, I have to say this whole thing worked out much quicker and more cleanly than I would have imagined. I’m a little surprised that Upper Deck didn’t see it out and try to fight the claims made by MLBP, but when you get down to it, it actually makes sense in a weird way. I guess they decided they wanted to stay in business a little longer after all. Here are the terms of the settlement, as known to the public, in case you haven’t seen them yet.
– Upper Deck will pay MLB Properties more than $2.4 million (the entire amount in dispute) for Upper Deck’s 2009 debts.
– Upper Deck will pay MLB Properties a substantial sum of money for the unlicensed cards it sold in 2010. The specific sum of that payment is confidential.
– Upper Deck has agreed not to issue any additional releases of infringing cards. Last year it issued 15 baseball card releases and there are currently only three infringing releases that are in distribution in 2010.
– Upper Deck agreed it will not make any new sets of cards using MLB logos, uniforms, trade dress, or Club color combinations.
– Upper Deck also agreed it will not airbrush, alter or block MLB marks in future products.
– Upper Deck must receive approval from MLB for the use of baseball jerseys, pants, jackets, caps, helmets or catcher’s equipment in future products featuring players.
The biggest one to me is the second from the bottom. They aren’t even allowed to airbrush game photos anymore. That’s like UN-un-licensed (yeah, I know…double negative, but you get what I’m trying to say). Unnnnnlicensed.
So, where does Upper Deck go from here? Well, I guess the first question really should be “how likely is it that Upper Deck will adhere to this agreement?” That’s a tough call. MLBP already knows that UD isn’t the kind to play fair. They’re also not the type to pay up. Will another piece of paper really get them to pay the money this time? I wouldn’t be totally shocked to see another suit filed for failure to pay.
Aside from the monetary aspect, Upper Deck also has a well-documented history of cheating and lying and conducting their business in an under-handed and illegal manner. Let’s say Series 2 comes out and it’s more of the same. What will happen? The product will get out into the public with the alleged copyright infringement just as it did the first time. Collectors will eat it up because they think it’ll get pulled off the shelves quickly (and it most likely wouldn’t get pulled quickly enough to make a secondary market difference – although maybe the settlement would prompt a judge to allow an emergency injunction). Upper Deck will get pulled back into court again and most likely face another settlement.
Why would Upper Deck do this? Well…for the same reason they did it the first time. Relatively little damage for the potential for a greater reward. Upper Deck didn’t produce those cards because they honestly felt they were safe copyright-wise. If that was the case, they wouldn’t have hid their product images before release and they wouldn’t have made and effort to hide the logos as much as they did. No, they produced them because they knew the controversy would boost sales to a level greater than if they released a safe product. I can only imagine that Upper Deck drew some non-collector dollars from those people hoping to get the possibly illegal cards before they went away. It’s a matter of any publicity is good publicity. Topps had the Million Card Giveaway and Upper Deck could only still compete by making news of their own. The fact that their news made it seem like their cards were something to grab sooner than later — was a good decision in a messed-up roundabout way. Doing it all a second time would be a greater financial risk however, because they have something filed saying they wouldn’t and would conceivably face stiffer penalties.
I got away from the question. Where do they go from here? Well, hopefully they get creative with it. You don’t need live action shots to have a successful product. You don’t even need pictures. Topps National Chicle and Topps Magic Football show that. Or Mayo. Goudy and Goodwin can be done sans logo, easily. Here’s another suggestion:
I know the Gwynn has a uniform, but when I think about Studio as a brand, I don’t remember that aspect. I remember the High School Senior picture goodness with the clubs and most likely to’s and the favorites, etc. Maybe Panini would be mad, but change it up enough and they should be fine. Or maybe they won’t change it at all. It is Upper Deck we’re talking about after all.
Use this opportunity to market to kids withOUT counterfeiting this time. Bring back Fun Packs. Bust out Collector’s Choice. Give us low-price options with silly drawings and stickers and whatever else. Try to nab a cartoon license again, if you don’t have one, and put more Comic Ball out. I’m not going to say that kids don’t care about a licensed card, but you can get away with a lot more odd-ball, non-licensed stuff in a product geared towards children. Why try to battle Topps head-on with most of their releases? Aggressively seek out this market, because Topps is leaving you an opening here, and success here can save your business.
What do you guys think? Am I totally off base? What else could they do to really differentiate themselves?