I understand that, generally, anything created by a U.S. federal government employee as part of their work is copyright-free in the United States. So anyone should be able to reproduce that photo, without permission and royalty-free. I don’t see that there is a case in copyright.
The only claim that Aldrin might have is if there is a suggestion that he is endorsing some commercial product, but it doesn’t seem to me that the “American heroes” depicted in a trading-card series would be seen as endorsing the series. If George Washington is one of the “heroes”, no one would think that he endorsed it.
I believe this is it. You can use the photos for documentary and educational purposes and even for certain commercial uses - like, and I’m just throwing this out as an example, if you created an astronaut ice scream and pasted on the packaging the famous photo of Buzz on the moon staring straight at the camera.
You run into problems, though, if you use his name, particularly in a way that suggests he endorses the product.
That’s what I was going to say. He can do it because he’s Buzz Aldrin and he’s awesome.
Even if they legally can use his picture because it’s not copyrighted, the polite thing to do would be to ask first. Especially since they are using it commercially. Imagine if a “male enhancement” company decided to use his picture. I could understand if he got a bit upset.
This has nothing to do with copyright law or being polite.
Aldrin’s cause of action is commercial misappropriation of his identity/image/likeness/persona, also known as a “right of publicity” claim.
Under this theory, it doesn’t matter what the copyright status of the photograph is. The fact is that Topps is using a representation of Aldrin qua Aldrin to make money, and you can’t do that without permission. It’s not as if they are using an image to illustrate some moment in history or something like that. They’re essentially selling Aldrin himself to collectors.
That’s why Topps and other card companies have to get releases from all the athletes they feature on their sports cards.
My thoughts exactly… if they were featuring Heroic Events then he wouldn’t have a leg to stand on as this is just an image that represents the moon landing. Instead they are featuring Heros, which clearly is Buzz in this case.
I don’t say that there would be no problem, but whatever problem there would be would be less glaring. And even in this case, I’m not certain whether Aldrin would win. I’m just setting forth his argument.
In the case of a trading card, I would argue, the product is nothing more than the person himself – his image, likeness, persona, identity. You can’t sell a person’s identity without his or her permission.
The same is true if you’re using a person’s image, etc., in advertising for another product. That’s commercial misappropriation.