I had the article all ready: a detailed analysis of the Panini v. The Art of the Game lawsuit. You know, the case where Panini was upset because The Art of the Game 1) used Kobe Bryant's likeness in its advertising and 2) sold sports memorabilia containing what Panini considered its exclusive property (e.g., memorabilia with Bryant's likeness or autograph)? That one.
The lawsuit started because Panini has a contract with Bryant which, Panini claimed, gave the company exclusive rights to exclusively use Bryant's name, likeness, image and signature. Basically, Panini owns everything except Kobe on the basketball court. And, according to Panini, The Art of the Game was not allowed to sell their own Bryant merchandise.
But guess what? On August 24, 2011, the lawsuit settled. Both sides stipulated to dismiss the case.
Legal translation: The case confidentially settled, and we'll never know the terms of settlement.
Boy was I ticked. Actually, I was happy that the parties could work something out (yeah right), but was ticked because I spent a lot of time familiarizing myself with that case (oh yeah, and writing the article) and they went ahead and came to a truce before I had a chance to share my thoughts. Also, and more pertinent for this article, I was upset because the case left a lot of unanswered questions.
Who won?
The case was heated. Panini brought suit then The Art of the Game moved for sanctions against Panini for allegedly filing a baseless lawsuit. Both sides submitted a lot of testimony in support of their positions. Among them were two declarations from Bryant himself.
So, does the settlement mean The Art of the Game's strategy of seeking sanctions scared Panini into settling? Or was Panini's case so strong that The Art of the Game caved? Or, did both sides just compromise and work out a business deal that was good for everyone?
We likely will never know.
Were people lying under oath?
There was a lot of seemingly contradictory testimony submitted in this case, and most of it focused on whether memorabilia was signed by Kobe Bryant in the presence of Andrew Bennett from The Art of the Game. For example, Bryant (for Panini) and Bennett's (for The Art of the Game) testimony could not even agree whether the two knew each other. Bennett testified that:
2. I have known NBA basketball player, Kobe Bryant, for over ten years. During those years, I have brought to Mr. Bryant various sports memorabilia items for him to sign, including but not limited to various posters, lithographs, pictures and equipment, which I have then transferred to various sports memorabilia dealers/retailers, including Harlan Werner.
Bryant, in addressing this exact paragraph of Bennett's testimony stated the exact opposite:
6. At paragraph 2, Bennett states that he has known me for over the years. He further states that he has brought me various sports memorabilia items to sign, including but not limited to posters, lithographs, pictures and equipment. I deny these statements. I do not know an Andrew Bennett.
So, did they know each other?
Since the testimony was contained within declarations (written testimony), immediate cross-examination was not available, but was clearly needed. Because the case settled, we'll never get answers to questions like:
Attorney: Mr. Bennett, you state that you “have known" Kobe Bryant for ten years. Are you a friend of Mr. Bryant? Has he ever called you before? Do you know if he even knows your name? Isn't it true that, really, he would not remember you any more than any other fan he signed an autograph for?
Or questions for Bryant like:
Attorney: Mr. Bryant, your declaration states that you “do not know an Andrew Bennett"…do you, however, happen to know this gentleman sitting in the court (gesturing at Andrew Bennett), because while you might not remember his name…you may remember his face?
I mean, I've worked at the same place for about six years now and I say, “Hi," to people on a daily basis that I, regrettably, do not remember their name. It's long past the forgivable forgets and now it would be too awkward to go up to them and say, “Hey, I know I've said ‘Hi' to you 650 times, but what's your name again?" Bryant's declaration did not say he saw a picture of Andrew Bennett and did not know that individual, it just said, “I do not know an Andrew Bennett."
These mysteries will likely go unanswered.
The second, and more interesting, batch of contradictions that we won't learn the answer to focused on whether or not specific memorabilia was signed by Bryant in Bennett's presence. In two separate paragraphs, Bennett testified that Bryant signed 25 pictures and seven movie poster while both were in the same room:
4. In or around January/February of 2011, I brought twenty-five (25) copies of a photograph showing Kobe Bryant and another NBA basketball player, Blake Griffin, to Kobe Bryant for his signature. A true and correct copy of this photograph is attached hereto as Exhibit "A." Mr. Bryant personally signed in my presence, each copy of the items I presented to him as mentioned in this paragraph. Shortly thereafter, I delivered the signed items back to Harlan Werner. Mr. Werner did not ask me at that time to obtain certificates of authenticity on any of these items, as our prior course of dealing had not included that specific activity.
6. In or around of March of 2011, I brought seven (7) copies of a movie poster of Kobe Bryant for the film "Black Mamba" to Mr. Bryant for his signature. A true and correct copy of this photograph is attached hereto as Exhibit "B." 4. Mr. Bryant personally signed in my presence, the items mentioned in this paragraph.
Bryant's testifimony is slightly different. In addressing both paragraphs, Bryant curtly testified that these events “never happened."
7. At paragraph 4, Bennett states that in January or February of 2011, he brought me twenty-five copies of a photograph showing myself and NBA basketball player Blake Griffin for me to sign, and that I signed them in his presence. I deny this statement. This event never happened.
8. At paragraph 6, Bennett states that in or around March 2011, he brought me seven copies of a movie poster for the film "Black Mamba" for me to sign, ad that I signed them in his presence. I deny this statement. This event never happened.
The only way I can see that the testimonies of Bryant and Bennett were not contradictory was if there was a Kobe Bryant impersonator out there signing memorabilia for people. While possible, I think that would be highly unlikely. But again, we'll never know!
While we still have questions born from curiosity that will go unanswered, the lawyers that worked on this case are probably equally disappointed by a settlement. Both Panini's and The Art of the Game's lawyers placed positions before the judge that they both thought would win. Hours were spent developing their positions, collecting evidence and then crafting well-written briefs and declarations to convey the message as quickly and coherently as possible.
And they'll never know if the judge would have picked them to win either.
Having been involved in too many cases where we'd spent hundreds of hours preparing for a trial, only to settle on the courthouse steps, I sympathize with the lawyers' thoughts of, “What could have been?"
It's exactly like training for an NBA season that might never happen.
Ouch. Too soon?
Oh, Panini v. The Art of the Game, we hardly knew you.
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