`
 (Toll Free)

Former Topps employee files multi-million dollar lawsuit over John Henry card

By Chris Olds | Beckett Baseball Editor

A former Topps employee filed a lawsuit in a New York Supreme Court last week seeking more than $4 million in damages after his image was used on a trading card without his permission.

Christopher Holmes, a former long-time brand manager for the company, was featured on five trading cards depicting him as the folk hero John Henry, a former slave who helped build railroads in mystifying fashion.

According to court documents, Holmes has “suffered public ridicule, degradation, humiliation, emotional distress, economic damages and other injuries” due to the American History Relic card, which was released in 2011 Topps Triple Threads. He also alleges that the cards are in violation of New York Civil Rights Law, which prohibits “the use of a person’s name, portrait, picture or voice for the purposes of advertising or trade without the written consent of the subject.”

Holmes, who had been employed by the company since 1994, was photographed while an employee last July, but he was terminated from the company without good cause, according to court documents, on Aug. 26. The cards were released in Triple Threads on Sept. 28.

The Henry card in the American History Relics set was not the first time that Holmes or a Topps employee had appeared on trading cards made by the company. In 2008, Holmes appeared on one of the Allen & Ginter Team Orange cards, a 10-card set of fictional characters on cards as part of a mystery code promotion for the product. In that and other instances, Holmes and other employees, according to the documents, were informed about the use of their likenesses and were furnished a sample copy of the cards for review and approval before the cards were produced.

In this instance, because Holmes was dismissed, the court documents say that he never authorized Topps to use his photo on the Henry card. He also alleges that Topps “knew or should have known that [he] did not and would not consent to the use of his likeness, image, portrait and/or picture to depict him as a former slave.”

In addition, he claims that because Topps knew he would not approve the card that he was fired without good cause before the release of the card, which was one of three subjects in the American History Relics set — Pecos Bill, John Henry and Leif Ericson. The cards were not previously announced to the public before they were found in packs and only five serial-numbered copies of each card were made by Topps.

Holmes is seeking $1 million in damages, punitive damages of $3 million, lost wages, attorney’s fees and any other damages that the court deems proper.

Topps had not yet responded to messages seeking comment.

Chris Olds is the editor of Beckett Baseball magazine. Have a comment, question or idea? Send an email to him at colds@beckett.com. Follow him on Twitter by clicking here.

32 Comments

tj massick

Really Mr. Holmes, didn’t think to maybe ask why they wanted you to pose for a photo in worn out clothes with a sledgehammer? I’m sure it never crossed your mind, because its not like they had had you pose for a card before…..oh wait they did. My bad.

Can’t wait to hear the other side of this one.

Posted February 23, 2012 at 11:45 am | Permalink
Tom B

Umm, he posed for a picture wearing overalls and carrying a sledge hammer.

I say “consent implied.” I also say that some compensation is probably coming his way, too, whether I believe that it is right or wrong. I am not sure that compensation is necessarily implied or required. I know that I hold four patents in my name that I was not compensated for by the company I was working for at the time…I hold the patents as inventor, but they hold the patents as intellectual property developed for them on their time. I know it is not the same thing, but I think there is some parallel…

Unfortunately, unless Mr. Holmes was in a union, he is an “at-will” employee (any hiring is presumed to be “at will”; that is, the employer is free to discharge individuals “for good cause, or bad cause, or no cause at all,” and the employee is equally free to quit, strike, or otherwise cease work), so whether he thinks they had “good cause” or not is immaterial.

Just my opinion…

Posted February 23, 2012 at 12:51 pm | Permalink

come on tj massick, have you ever heard of photo shop, the guys has a point, if you didn’t ask him, don’t use him, they set themself up, but we do have only one side so we will see.

Posted February 23, 2012 at 1:59 pm | Permalink
steve-o

I think, I know Oregon is for sure !! , most states are an “at will” workplace. Right or wrong……welcome to America !! and on that note- look at how employees are treated in ‘third world’ countries or as a lot of people call it-working at Nike !!!!

Posted February 23, 2012 at 2:53 pm | Permalink
chrisolds

The State of New York’s laws are the only ones that matter here.

Posted February 23, 2012 at 2:57 pm | Permalink
Richard

I’d have more sympathy for the guy if they had portrayed him in a negative light.
John Henry is a freaking hero, not a bad guy, not a loser, but a character that was
trying to show the value of man over machine. Now if he was made into step-and-fetch-it
or Uncle Tom (who is really a heroic character, but the name has a negative reputation)
then he might have a case.

Add to this the fact that he has a history of allowing his image to be used and likely has
a contract which allows for it to be used and the cards were likely created before his
departure (give the time to make and release) I seriously doubt he will have a case that
holds up let alone pays out what he asks for.

Posted February 23, 2012 at 3:11 pm | Permalink
Ben

I know my opinion of Christopher Holmes totally changed free those cards were released. Wait. Who?!

Posted February 23, 2012 at 3:49 pm | Permalink
Keith

Not that Topps doesn’t deserve some bad press and a lawsuit after their debacle with eTopps, but this lawsuit has no merit. I assume he was let go because his services were not needed in the company any more. Since his photo was taken while he was employed i would also assume he signed a release form. Just because he is bitter over losing his job does not entitle him to 4 million dollars. Come on, someone using your picture on a card after you got let go, destroyed your life to the point that you should get more money than most people make in a lifetime is just plain stupid. The problem is he will probably get something out of Topps just to go away. That is why America is where it is today.

Posted February 23, 2012 at 4:01 pm | Permalink
card opinionator

I agree with most comments so far. Add to that, he was an employee while the pictures were taken. Why would they take the pictures if not to use them? The fact he appeared in another set kind of sets the precedent right?
I always laugh at lawyer speak: “suffered public ridicule, degradation, humiliation, emotional distress, economic damages and other injuries”. Emotional distress? Really? He’s a chiseled stud with a sledge hammer or a bat. He’s not dressed like a Pokemon character!
Lawyers……..

Posted February 23, 2012 at 4:23 pm | Permalink
ddizzal

this guy is just pissed he got canned!

Posted February 23, 2012 at 5:38 pm | Permalink
kevin

If they fired him or laid him off either way they should not have used his photos after period. topps let some one go and then used there photo in a product and didn’t see this coming lol.I grow more sick of collecting every year and buy less and less. were always way over paying for them and get no value for them any more. maybe its just time to just quit hell im rooting for him.

Posted February 23, 2012 at 7:56 pm | Permalink
XstreamINsanity

I don’t know how much of a case he has, but it is intriguing. I mean, if the conversation went:

Topps: Hey, let’s get some photos of you for cards we’re thinking of making.
Mr. Holmes: Ok.

That actually leaves it open. He ok’d them taking pictures of him for future cards. However, I think they MAY have to let you know what cards your image is going to be used for. I think that’s his only case and it’s a very slim case. Maybe a written consent is needed? Maybe the verbal agreement is upholding? I’m not sure. I wouldn’t throw it out just yet. I do think the amount of the lawsuit is stupid. Question is, does he get a percentage kickback from the other products his images are in? If so, I think that should be his only reward from this lawsuit. And with a card /5, it’s odd he found out about it.

Posted February 23, 2012 at 8:16 pm | Permalink
Kreepy

Sounds like he is just mad that he got canned. Sounds like another pointless lawsuit and he is hurting for money and now he needs money so the easiest way to do it is to sue Topps.. lets see how quick this get tossed out.

Posted February 23, 2012 at 9:56 pm | Permalink
toofpik

I’d like one black person’s opinion. To be portrayed as a slave, as a member of a race that was only given civil rights in the last fifty years, might make one a bit sensitive.
Plus, all you lawyers haters, wait until you need one. Lawyers are constantly bashed by the right-wing media because they are major contributors to the democratic party. Lawyers rarely if ever get good press.

Posted February 23, 2012 at 10:44 pm | Permalink
Folkert Leffring

Unfortunately I’m not very familiar with the slavery history of the US, but from what I understand from the above comments the man is a hero. If they use your photo to depict a hero, I’d be pretty hyped. And errr… $4 million?! Perhaps he can also explain what he means with ‘public ridicule’ if we’re dealing with a trading card of which only 5 were made. It’s not the front page of the NY Times or anything.

As said before, just pissed cause he got canned

Posted February 24, 2012 at 3:57 am | Permalink
heath lorah

trying to make money the easy way, instead of earning it, i’ll just file a lawsuit. i’m really sure someone is talking down to that huge individual to his face and making him feel ridiculed , yeah right. did you see his arms. he would crush you in a second. lol, but he’ll probably win a bunch of money. good for him , bad for topps , bad for all of us , all topps packs just went up a $1

Posted February 24, 2012 at 6:32 am | Permalink
Tom Waldron

On the other hand perhaps this was calculated and Topps knew they had the power in their hands more lawyers etc. Untill the ‘without cause’ is explained we wont’t know for sure.
As stated above without a union this is what a worker can expect and there is some merrit for creative intellectual propert question is how far remeber the Panini Kobe/stadiium auto’s debacle. My opinion is no matter the contract I own my right to do with my own image or likeness. Always get this in writting if you work for Topps or Panini whomever wants to use your ‘LIKENESS’
nuff said

Posted February 24, 2012 at 9:06 am | Permalink
card opinionator

So can we infer other Topps employees are pictured in the Team Orange set? Anyone know?

Posted February 24, 2012 at 9:50 am | Permalink
chrisolds

Everyone: My two cents. As I understand the law, regardless of employment, a person’s likeness can’t be used without permission when it comes to selling something that is a non-editorial product. Whether approvals exist or not is they key — at least in my mind.

Topps can’t use a photo of me to sell cards (in their ads or on their cards) without my permission or without my being compensated — just like Joe Blow’s photo can’t be used to sell Fords or soap.

The only way my photo could be used to sell something would be if I posed for stock photography and the photographer had a signed release form — so the image was “cleared” legally.

This is very similar to the approvals process for making cards — cards of athletes will be approved by a representative for the player (MLBPA for baseball, for example). Someone like, say, SI model Kate Upton (who will be in Ginter) will have an agent approve the card images and blurbs.

Posted February 24, 2012 at 10:34 am | Permalink
Robert

Christopher is huge. He should join the WWE as “John Henry.” He could battle Triple H in a classic “Sledgehammer on a Pole” match.

Posted February 24, 2012 at 3:11 pm | Permalink
Tim

I am extremely disgusted and appalled by the racism and/or ignorance in the majority of these comments. To address a few points, Chris is right. He has every right to sue for the use of his likeness without his permission no matter what. This is no different than those lazy players trying to make money the easy way by suing the card companies as has been the case in several prior cases. Secondly, I don’t give a darn if it’s a hero slave or a stereotype slave depiction it’s still depicting him as a slave, and topps is strongly in the wrong if they didn’t inform him. Even if he had signed some sort of release form saying he could be used in any future product, if I had a brain and worked for topps id still have him sign another form for the controversial nature of this card. It doesn’t matter if it’s a five card print run anymore with the Internet. One person scanning that card onto the Internet turns it into a million card print run. I’ve seen hundreds of 1/1 cards. And honestly, just one racist person who sees him and makes a derogatory comment can create emotional distress. You don’t think this image wouldn’t run rampant through white supremacy groups? And lastly, can I say photoshop? You say he posed for this picture, but I’m not so sure. He looks like two different people in 2008 and 2011 and yes a diet and strict workout could make a difference but for those arms, I’d say he would have had to have some steroid help.

Posted February 24, 2012 at 6:14 pm | Permalink
steve-o

hey toofpik- wouldnt it be a better place if we were all lefties that played for the Republicans & loved all dem lawyers ?!?!?! LOL

so health…..packs up a $1, then some will be $301 or $401 or $501…….dang

and finally……not familiar with the united states slavery story ?? I’m sorry-thats an issue that may have gotten “better” with civil rights laws-but in my opinion, this country still has bigotry on the streets of a lot of citys around the nation…..and not just against a persons nationality.

in the outcome of the lawsuit-its about whomever has the deeper pockets…..skin color, unfortuneatly, probably wont be why the case is won or lost

Posted February 24, 2012 at 9:35 pm | Permalink
Richard

Point of order. John Henry was a FORMER slave and a hero.

The basic story is that the railroad was trying to replace a crew of black, mostly former slave,
workers with a machine. John Henry challenges the owner to a contest with the
workers keeping their jobs if he won. It’s bittersweet in that John Henry won, but died
right after winning. Being portrayed as John Henry is an honor, not a slight.

In any case, I’m sure far, far more people are now aware of his being the model because
of the lawsuit than ever were prior to it. I can’t find any copies of these cards on Ebay.
I thought there was a semi-plentiful version in edition to the one serial #’d to 5.

Posted February 25, 2012 at 4:58 am | Permalink
cincyscott

Just buy all the cards back and give them to the fake John Henry

Posted February 25, 2012 at 11:00 am | Permalink
kevin

topps photo shops everything else…they couldn’t photoshop the real john henry

Posted February 25, 2012 at 8:40 pm | Permalink
Keith

Not to make this a political discussion, but saying losing his job is what he gets because he isn’t part of a union is just playing left wing politics. Unions are the reason you get to pay $12.95 for the first card and $2 for each additional one to have Topps ship cards to you. (Union contractor does the pack and ship) Unions are probably the reason that this employee lost his job. When a company can be held hostage by unions and cannot let employees go when they do not have work for them, that is a problem. So they have to keep the lazy overpaid employees that get protected by the unions and loose the ones that are actually producing and paid a fair wage for what they do. I have no idea what the details are for his dismissal from his job, but trying to throw your pro union opinion in as the reason is just plain wrong.

Posted February 26, 2012 at 6:12 pm | Permalink
steve-o

I’m confused Keith…..are you for the unions or not ?!?!?!?! LOL

Posted February 27, 2012 at 3:02 pm | Permalink
James Jackson

People! You are missing the picture. if he signed a consent form for prior card photos while working for the company, that contract expired the day they fired him. To come out with a card after he was “let Go” is wrong. He has every right to sue. Just my opinion.

Posted February 27, 2012 at 3:46 pm | Permalink
Richard

1) If unions are the reason why shipping is so high on e-topps, explain the lower fees for
other promotions. I think its simply a case that now that the knew they would not be
selling new e-topps cards that they would use the shipping to generate revenue.
I’m expecting that if they shut down completely that they will be sued over this.

2) Depending on the nature of the consent form they may or may not have the right to
use his image. The thing is, given the release date of the product they in all likelihood
had already printed the cards.

Posted February 28, 2012 at 4:57 pm | Permalink

I dont think this guy is really holding a sledg hammer or in overalls, I think all that is photoshoped into the picture, they are using is face and overall gist of his body structure.

I agree that he’s on hard times and looking for a easy score. I agree that he’s mad at topps and is looking for retribution but those two things do not forfiet his rights. Thats like saying, “That lady is only pressing charges on that guy because she’s mad about being raped”. When you are wronged by someone or something and then wronged again, I think its only expected to want capitalize on it.

Look, if any of you haters had the same opportunity he has you would take it, don’t be upset at the guy thats upset and dismiss his karmatic situation. Good for this guy and I hope he wins every dime. Maybe a lot of good will come from that money and he will be able to touch dozens of lives in a positive way. Maybe he will buy a crack rock the size of a UHAUL and smoke himself to death. What ever he does its his perrogative. I’m not black but if I was I would not consent to my mug being glued to a slave card.

On the flip side –

There are only 5 cards of this guy made, if he is so worried about his reputation maybe going public and sueing Topps for 5 Million Dollars wasn’t the most descrete thing to do. Counter intuitive from where I’m sitting. That’s like me being caught on tape cheating on my wife then going to FOX to complain about being filmed without my consent.

Posted June 13, 2012 at 4:15 pm | Permalink
FORMER TOPPS EMPLOYEE

I used to work as an Art Director at THE TOPPS COMPANY. First and foremost, the image was photoshopped, as are many of the cards (players are often traded and images do not always have the correct uniforms, so they are altered or “painted” into proper uniforms ALL THE TIME). He did NOT dress up in that attire for the image.

When I worked there, it was an honor (of sorts) to be featured on any of the cards. Many employees wanted their images on the cards and the thought of a “release form” is almost laughable.. Again, it was seen as an honor to be on a published card… (if you worked there, you would understand).

Additionally… I do not think anyone here understands the time frame for which these cards are produced… the suit is laughable considering the “production process” takes OVER 3 months BEFORE the cards are released. Mr. Holmes would have had to sign off on his card WAY BEFORE HE WAS terminated. His signature would have been found folders which the proofs would have been circulated around the office. Hope they didn’t throw them out (but, I am sure they have…) By the way, being that the card was a “specialty” card… He most certainly knew he was going to be on the card… this is no racial attack… I must say, TOPPS was one of the most racially diverse organization I ever worked for…

ANYWAYS… Good luck on the lawsuit!

Fondly,
A person who does not like, nor dislike The Topps Co… yet, thinks this is pretty silly.

(P.S. I must say… if EVERYTHING I KNOW about working there is untrue, then I am indeed sorry that your image was used without your knowledge… that’s just not cool! BUT I DOUBT THAT… )

:)

(P.P.S. as an ex-employee, I would STILL find it pretty cool to have an actual card with my image on it… EVERYONE I knew who worked there hoped to have their image on a card… Including HIM)

Posted August 3, 2012 at 8:32 pm | Permalink

One Trackback

  1. [...] damages that the court deems proper. Topps had not yet responded to messages seeking comment. Beckett News Former Topps employee files multi-million dollar lawsuit over John Henry card __________________ Shop for Sports Cards and Trading [...]

Post a Comment

Your email is never shared. Required fields are marked *

*
*