Indiana Court Transfers Publicity Rights Litigation To New York

The court continued: “Although CMG makes reference to the expired Permission Agreements [with the Indiana forum selection clause], CMG does not explain in the Amended Complaint nor in its filings how the expired Permission Agreements play a role in this case.

“Indiana has little or no connection with the controversy at issue. CMG, the only party connection to Indiana, is merely acting as an agent for the estates of these players, so its location is not material. In addition, no Indiana property rights are implicated by this case as Topps has not established that any of the Legends were domiciled in Indiana at the time of each of their respective deaths. New York, on the other hand, was the domicile of two of the players in question (Lou Gehrig and Christy Mathewson) at the time of their deaths, so New York law applies to any publicity rights that CMG allegedly holds and allegedly transferred to Topps with respect to these former players.”

The U.S. District Court for the Southern District of Indiana granted a defendant's motion to transfer to New York federal court a suit over the alleged unauthorized use of the names and likenesses of legendary baseball players, including Lou Gehrig, Thurman Munson and Jackie Robinson. CMG Worldwide Inc. v. The Upper Deck Co. Inc., 1:08-cv-761-RLY-JMS.

In 2007, CMG, an Indiana-based celebrity licensing agency, and Upper Deck, with offices in California and New Jersey, entered into short-term, non-exclusive agreements for trading card goods. The agreements included an Indiana forum selection clause. In 2008, CMG entered into an exclusive agreement for the rights to the same baseball players with the New York-based Topps Co. CMG and Topps then sued in Indiana federal court, alleging that Upper Deck had released trading card products after its agreements with CMG expired.

In granting Upper Deck's motion to transfer the case to the Southern District of New York, the Indiana district court noted: “Both Upper Deck and Topps have offices either in or near the Southern District of New York. Although CMG does not have an office in New York, CMG engages in business throughout the world.”

The court continued: “Although CMG makes reference to the expired Permission Agreements [with the Indiana forum selection clause], CMG does not explain in the Amended Complaint nor in its filings how the expired Permission Agreements play a role in this case.

“Indiana has little or no connection with the controversy at issue. CMG, the only party connection to Indiana, is merely acting as an agent for the estates of these players, so its location is not material. In addition, no Indiana property rights are implicated by this case as Topps has not established that any of the Legends were domiciled in Indiana at the time of each of their respective deaths. New York, on the other hand, was the domicile of two of the players in question (Lou Gehrig and Christy Mathewson) at the time of their deaths, so New York law applies to any publicity rights that CMG allegedly holds and allegedly transferred to Topps with respect to these former players.”