Collector’s Paradise

The Topps Company is a part of virtually everyone’s childhood and is just as important to adults. Heather Goldstein Greenberg explains how intellectual property issues around its products illustrate the evolving state of licensing, parody, and fair use.

At the Topps Company headquarters in New York, Heather Goldstein Greenberg proudly embraces her role as both a licensee and licensor.

In fact, it was the opportunity to embrace this dual role that led her to Topps from a very different Manhattan-based, IP-intensive company.

Prior to Topps, Greenberg served as assistant vice president, intellectual property counsel, at Martha Stewart Living Omnimedia for seven years. After leaving the world of recipes and bedding to “play ball” at Topps, she started as associate general counsel and was later promoted to deputy general counsel.

The Topps Company markets physical and digital trading cards that feature professional athletes, Star Wars characters, World Wrestling Entertainment stars, Garbage Pail Kids, Wacky Packages, and The Walking Dead, along with a variety of other SKUs.

“At Martha Stewart, we were always the licensor,” Greenberg recalls. “When I joined Topps, I was able to continue to develop as a licensing attorney by negotiating licenses with Major League Baseball, Disney, and Lucasfilm in the role of licensee. But I still have the mind-set of a licensor through our Topps IP licensing programs for brands such as Mars Attacks.”

Topps publishes trading cards, while Martha Stewart publishes the quintessential magazine on good living. Yet some of Topps’ most famous intellectual properties—the aptly named Wacky Packages and the intentionally repulsive Garbage Pail Kids, for example—have a different take on social graces. While not everyone has shared Topps’ sense of humor, “The courts recognize these products as having an important social benefit,” explains Greenberg.

“Topps has played a strong part in the development of parody in the United States,” she says. It should be noted that Garbage Pail Kids have stood the test of time. Introduced in 1985 as a dark riff on the Cabbage Patch Kids, the property was created by acclaimed cartoonists Mark Newgarden and Art Spiegelman, the latter of whom won the Pulitzer Prize for his graphic novel Maus. As such, the Garbage Pail Kids haven’t only functioned as a parody, but a pointed satire of culture and politics. It’s a trend that continues to this day.

Topps is owned by a group of investors headed by Hollywood mogul Michael Eisner’s The Tornante Company, which explores synergistic partnerships for Topps’ products. This global reach of Topps’ businesses was also attractive to Greenberg. For example, Bazooka bubble gum and its companion Bazooka Joe comics are carried in several languages and distributed in North America, Europe, and Israel. And considering a landmark “right of publicity” case involving Topps’ publication of a well-known photo of astronaut Buzz Aldrin on the Apollo 11 mission, one could say the reach is interplanetary.

In the case of Dr. Buzz Aldrin et al. v. Topps Company Inc., the court determined that, as the publisher of the American Heritage trading card set—which features heroes of spaceflight, sports, entertainment, and other categories—Topps had created the equivalent of a textbook of American cultural history in trading card form. Contrary to the astronaut’s assertions, publication of the photo was entitled to full First Amendment protection. This is also the type of case that Greenberg says makes her job particularly interesting.

Topps company folklore includes a 1960s garbage dump (in the Atlantic Ocean) of a stockpile of 1952 baseball cards that were unsold. In that disposal were stacks of Topps’ 1952 Mickey Mantle card, which is today one of the rarest and most valuable trading cards in the world. In fact, one sold in 2008 for about $282,000. This illustrates the staying power of the company’s vast products.

“People love to collect stuff,” Greenberg says. “It’s a tangible way to remember things. It’s a way to share your childhood with your children. And most of all, it’s about the thrill of the chase. My childhood is filled with memories of looking for Bazooka comics with my dad to send away for prizes and flipping through his basketball card collection.”

Greenberg often has to take on another responsibility in her role as IP attorney—that of protector and enforcer—when she has to carry out the emotionally more difficult task of stopping infringers. “I occasionally have to explain to a Topps fan why they can’t reprint Topps cards without Topps’ permission. More often than not, it’s an education process,” says the former social studies teacher. “Once people understand the nuances of copyright or trademark law, they get why Topps has to protect the integrity of their intellectual property.”

Yet as a consumer products company, the nearly eighty-year-old firm needed to evolve and innovate. Topps still manufactures Bazooka gum, but nothing edible is packed with the paper trading cards anymore. There are also digital cards, which include videos of historic, game-winning plays. “Younger people today are more used to opening files on a computer than flipping baseball cards in their backyards,” Greenberg says. “It’s a constantly changing business, which now includes the use of social media, user-generated content, contests, and even digital stickers.”

“Once people understand the nuances of copyright or trademark law, they get why Topps has to protect the integrity of their intellectual property.”

Whether in physical or digital form, Topps trading cards and confectionery products appeal to adults and children alike. As one might imagine, Greenberg’s own school-age children “think I have the coolest job in the world,” she says. It’s a career that allows her to be a role model to them in several respects.

A strong proponent of flexible work arrangements and work-life balance, Greenberg goes into the office just three days a week. She says wearing this hat—most likely a baseball cap—as a mom enables her to be an even better in-house attorney.

Foley & Lardner LLP:

Among Heather’s many impressive leadership qualities is her ability to focus on the nub of critical legal and business issues by prioritizing and re-prioritizing a myriad of responsibilities to manage a very robust worldwide trademark portfolio.

—Rob Weisbein, Partner, Intellectual Property Litigation