Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THE UPPER DECK COMPANY, Case No. 24-cv-00923-BAS-DEB 12 Plaintiff, ORDER: 13 v. (1) GRANTING UPPER DECK’S MOTION IN LIMINE #1 (ECF 14 PIXELS.COM, LLC, No. 133);

15 Defendant. (2) GRANTING UPPER DECK’S 16 MOTION IN LIMINE #2 (ECF No. 134); 17 (3) DENYING UPPER DECK’S 18 MOTION IN LIMINE #3 (ECF 19 No. 135);

20 (4) GRANTING PIXELS’ MOTION IN LIMINE #1 (ECF 21 No. 136);

22 (5) GRANTING IN PART AND 23 DENYING IN PART PIXELS’ MOTION IN LIMINE #2 (ECF 24 No. 138);

25 (6) DENYING PIXELS’ MOTION 26 IN LIMINE #3 (ECF No. 140);

27 28 1 (7) DENYING PIXELS’ MOTION IN LIMINE #4 (ECF No. 141); 2 AND 3 (8) DENYING AS MOOT PIXELS’ 4 MOTION IN LIMINE #5 (ECF No. 142) 5 6 7 Plaintiff The Upper Deck Company (“Upper Deck”) filed three motions in limine 8 (ECF Nos. 133, 134, 135) to which Defendant Pixels.com, LLC (“Pixels”) responded. 9 (ECF Nos. 146, 147, 148.) Pixels filed five motions in limine (ECF Nos. 136, 138, 140, 10 141, 142) to which Upper Deck responded. (ECF Nos. 150, 151, 152, 153, 154.) The 11 Court issues this Order without prejudice to clarification at the oral argument scheduled 12 for October 9, 2026. (ECF No. 197.) 13 I. UPPER DECK’S MOTION IN LIMINE #1 (ECF No. 133) 14 Upper Deck moves to exclude evidence of prior lawsuits as irrelevant and more 15 prejudicial than probative under Federal Rule of Evidence 403. (ECF No. 133.) Pixels 16 does not oppose. (ECF No. 146.) Hence, the Court GRANTS Upper Deck’s Motion in 17 Limine #1. (ECF No. 133.) If the prior lawsuits become relevant during the trial, Pixels 18 may raise the issue outside the presence of the jury. 19 II. UPPER DECK’S MOTION IN LIMINE #2 (ECF No. 134) 20 Upper Deck moves to exclude evidence of non-fungible tokens (“NFTs”) and 21 specifically any dispute between Upper Deck and Michael Jordan about NFTs. (ECF No. 22 134.) Pixels argues that NFTs may become relevant on the issue of what constitutes 23 “Collectible Products” and that this may become appropriate for impeachment. (ECF No. 24 147.) The Court GRANTS Upper Deck’s Motion in Limine #2 without prejudice to Pixels 25 re-raising the issue outside the presence of the jury if NFTs become relevant during the 26 trial. (ECF No. 134.) 27 III. UPPER DECK’S MOTION IN LIMINE #3 (ECF No. 135) 28 1 Upper Deck moves to preclude evidence of its lost profits due to Pixels’ sales of 2 Michael Jordan products or payments made by Brevatter, LLC to Upper Deck as irrelevant 3 and more prejudicial than probative under Rule 403. (ECF No. 135.) Upper Deck argues 4 that it is seeking solely to disgorge Pixels’ profits and recover the fair market value of what 5 Pixels allegedly took. (Id.) Pixels opposes. (ECF No. 148.) 6 The Court DENIES Upper Deck’s Motion in Limine #3. (ECF No. 135.) Upper 7 Deck’s lost profits are relevant on the issue of what the licensing agreement is worth, and 8 the prejudice or danger of consuming undue court resources does not outweigh this 9 probative value. 10 IV. PIXELS’ MOTION IN LIMINE #1 (ECF No. 136) 11 Pixels moves to prohibit evidence of other litigation, settlements, or trial judgments. 12 (ECF No. 136.) Upper Deck responds that Upper Deck’s expert relied on some of this 13 evidence in calculating damages and that the history of prior trademark infringement is 14 relevant on the issue of willfulness. (ECF No. 150.) 15 The Court agrees that releasing the facts of prior settlements, their similarity or 16 differences with this case, and the reasons for settlement is likely to consume undue court 17 resources and confuse the jury without much probative value. Any prior lawsuits or 18 settlements would only be relevant if there was a court or jury finding that Pixels did 19 infringe or if Pixels specifically admitted that it infringed as part of a settlement, and, even 20 then, there is a strong danger that the jury could be distracted with facts from other lawsuits 21 far afield from the facts in this case which could confuse the issues. Hence, the Court 22 GRANTS Pixels’ Motion in Limine #1 under Rule 403. (ECF No. 136.) 23 V. PIXELS’ MOTION IN LIMINE #2 (ECF No. 138) 24 Pixels moves to limit evidence based on the statute of limitations. (ECF No. 138.) 25 Pixels asks the Court to determine two subsidiary issues: the relevant limitations period for 26 Upper Deck’s claims, and the relevant accrual date as to each image underlying Upper 27 Deck’s state law causes of action. 28 1 As a threshold matter, the Court already determined the limitations period for Upper 2 Deck’s state law and federal claims. (ECF No. 194 at 44:20–27, 46:10–47:16.) 3 In its Motion in Limine #2, Pixels moves to apply the “single publication” rule (Cal. 4 Civ. Code § 3425.3) to determine the exact date from which Upper Deck’s state law claims 5 can accrue as to each image. (ECF No. 138-1 at 4:7–5:4.) When ruling on Parties’ motions 6 for summary judgment, the Court had expressly reserved ruling on the applicability of the 7 “single publication” rule for the motions in limine stage. (See ECF No. 194 at 46:15–16 8 (“At oral argument, Parties agreed that the specific images that fall within those time 9 frames could be addressed at motions in limine.”).) 10 “The single-publication rule limits tort claims premised on mass communications to 11 a single cause of action that accrues upon the first publication of the communication, 12 thereby sparing the courts from litigation of stale claims when an offending book or 13 magazine is resold years later.” Yeager v. Bowlin, 693 F.3d 1076, 1081–82 (9th Cir. 2012); 14 Roberts v. McAfee, Inc., 660 F.3d 1156, 1166–67 (9th Cir. 2011) (internal quotation marks 15 omitted); see also Cal. Civ. Code § 3425.3. The single-publication rule applies to the 16 internet. Roberts, 660 F.3d at 1167. In print and on the internet, statements are generally 17 considered “published” when they are first made available to the public. Id. 18 Under California’s single-publication rule, the statute of limitations is reset when a 19 statement is republished. See id. A statement in a printed publication is “republished” 20 when it is reprinted in something that is not part of the same “single integrated publication.” 21 Yeager, 693 F.3d at 1082 (citing Christoff v. Nestle USA, Inc., 47 Cal. 4th 468, 477 (2009)). 22 A statement on a website is not “republished” unless the statement itself is substantively 23 altered or added to, or the website is directed to a new audience. Yeager, 693 F.3d at 1082. 24 Merely continuing to host a statement on its website does not constitute republishing. See 25 Roberts, 660 F.3d at 1169 (continuing to host a press release on a website is “inaction” 26 which “is not a republication”). 27 First, the Court agrees with Pixels that the single-publication rule applies to 28 Plaintiff’s common law and statutory rights of publicity and unfair competition law 1 (“UCL”) claims. (ECF No. 138-1 at 4:7–5:4.) Claims arising from the unauthorized use 2 of a plaintiff’s name and image, such as Upper Deck’s publicity claims, are subject to the 3 “single-publication rule.” See Cal. Civ. Code § 3425.3; Christoff, 47 Cal. 4th at 476–77 4 (holding the single-publication rule “applies by its terms to any action for . . . invasion of 5 privacy” and also “applies to causes of action for unauthorized commercial use of 6 likeness”). Moreover, because Upper Deck’s UCL “unlawfulness” claim is derivative of 7 other claims arising from the unauthorized commercial use of likeness (including the right 8 of publicity), the single-publication rule applies to determine the accrual of those claims as 9 well. Tseng v. PeopleConnect, Inc., 665 F. Supp. 3d 1136, 1148 (N.D. Cal. 2023) (applying 10 the single-publication rule to determine date of accrual for plaintiff’s UCL claim predicated 11 upon plaintiff’s right of publicity claim). “[R]epublication of the statement gives rise to a 12 new cause of action and thus a new limitations period.” Sundance Image Tech., Inc. v. 13 Cone Editions Press, Ltd., No. 02 CV 2258 JM (AJB), 2007 WL 935703, at *6 (S.D. Cal. 14 Mar. 7, 2007) (citing Shively v. Bozanich, 31 Cal.4th 1230, 1245 (2003)). 15 Though Upper Deck contends that the single-publication rule should not apply 16 because the rule requires evaluating whether Pixels made a “conscious, deliberate choice” 17 to reissue the publication (ECF No. 151 at 2:1–3:2), the Ninth Circuit explicitly rejected 18 this argument in Yeager. See Yeager, 693 F.3d at 1083 (“Justice Werdegar’s concurrence 19 [in Christoff, 47 Cal. 4th 468, arguing that the single-publication rule would require 20 evaluating the publisher’s conscious, deliberate choices] was not adopted by the majority 21 and therefore is not the law of California.”). 22 Additionally, each individual product image displaying Michael Jordan’s likeness 23 (e.g., jersey number, jump logo, or face) constitutes a “republication” as to aspects of 24 Michael Jordan’s likeness. Each individual image displaying Michael Jordan’s likeness 25 represents a separate physical product to be sold and differs substantially in overall 26 appearance (see, e.g., ECF No. 194 at 2:16–4:13). Put differently, the disputed images on 27 Pixels’ website are not intended to be viewed collectively as a series of images displaying 28 Michael Jordan’s likeness. Thus, each image is akin to a hardcover book republished as a 1 later paperback version of that book (which California courts have treated as a 2 republication), rather than to a newspaper repeatedly publishing the same statement in each 3 daily edition. Yeager, 693 F.3d at 1082 (republication can be found where the “statement 4 itself is substantively . . . added to.”); Kanarek v. Bugliosi, 108 Cal. App. 3d 327 (1980) 5 (finding republication where the defendant published the same statement in a hardcover 6 book then later in a paperback version of the same book); Belli v. Roberts Bros. Furs, 240 7 Cal. App. 2d 284 (1966) (finding no republication where the defendant published the same 8 statement in a series of daily newspapers). The Court concludes that each individual image 9 presents a separate cause of action as to Plaintiff’s statutory and common law California 10 publicity and UCL claims, and that the relevant limitations period begins to run at the time 11 that image was uploaded to Pixels’ website. 12 For the reasons above, the Court GRANTS IN PART (with respect to application 13 of the single-publication rule to treat each individual image’s upload date as the date of 14 accrual for that image) (see ECF No. 201 at 4:12–16) and DENIES IN PART (with respect 15 to Pixels’ proposed statutory limitation periods) Pixels’ Motion in Limine #2. (ECF No. 16 138.) 17 VI. PIXELS’ MOTION IN LIMINE #3 (ECF No. 140) 18 Pixels moves to exclude all evidence that contradicts any written agreement between 19 Upper Deck and Jump 23, Inc.; specifically, Pixels moves to exclude Upper Deck from 20 arguing that it had an agreement with Michael Jordan, not just Jump 23, Inc. (ECF No. 21 140.) Upper Deck opposes. (ECF No. 152.) 22 The Court agrees that any non-written, oral testimony about what the agreement 23 means should be excluded and that testimony cannot be elicited to contradict or provide 24 contrary meaning to what is contained in the written contract. See Koochakkhani v. Cap. 25 One, No. 19-CV-06412-SK, 2020 WL 13532959, at *5 (N.D. Cal. May 15, 2020) 26 (“Plaintiffs’ argument that Defendants breached an implicit term of the agreement when 27 the explicit terms of the agreement state the opposite contradicts a basic principle of 28 contract law: the form of a written agreement supersedes contemporaneous oral 1 negotiations.”); Sullivan v. Mass. Mut. Life Ins. Co., 611 F.2d 261, 264 (9th Cir. 1979) 2 (“Under California law, a written contract presumptively supersedes all prior or 3 contemporaneous oral agreements concerning the subject matter of the written contract. 4 See Cal. Civ. Code § 1625; Cal. Civ. Proc. Code § 1856.”). 5 However, the Court declines to exclude any testimony that would clarify what 6 contractual parties intended at the time of writing the contract—such as Parties’ operation 7 under the contractual definition of “Attributes” for decades (see ECF No. 200 at 4:16–19) 8 and/or operation under the assumption that the preamble of the agreement accurately 9 represents Jump 23, Inc.’s legal authority to represent Michael Jordan’s interests (see id.; 10 ECF No. 194 at 37:15–17). Epic Commc’ns, Inc. v. Richwave Tech., Inc., 237 Cal. App. 11 4th 1342, 1355, 188 Cal. Rptr. 3d 844, 855 (2015) (discussing modification to the 12 California parol evidence rule) (“[T]he course of actual performance by the parties is 13 considered the best indication of what the parties intended the writing to mean.”). 14 The Court also declines to exclude all later written agreements that relate to the scope 15 of the agreement between Jump 23, Inc. and Upper Deck—including addenda to the 16 agreement and Upper Deck’s sublicensing agreements that Pixels clarifies it seeks to 17 exclude in supplemental briefing (see ECF No. 201 at 7:4–9). See K.C. v. Superior Ct., 24 18 Cal. App. 5th 1001, 1011–12 (2018) (quoting State Dep’t of Pub. Health v. Superior Court, 19 60 Cal. 4th 940, 960 (2015)) (“Finally, to the extent [contractual provisions] conflict, we 20 apply the maxim that ‘later enactments supersede earlier ones.’ ”). 21 Since Pixels has failed to explain how the evidence it generally seeks to exclude 22 regarding the meaning of the agreement between Jump 23, Inc. and Upper Deck is 23 precluded by the parol evidence rule, the Court DENIES Pixels’ Motion in Limine #3. 24 (ECF No. 140.) 25 VII. PIXELS’ MOTION IN LIMINE #4 (ECF No. 141) 26 Pixels moves to exclude the “Clarification” of the agreement as hearsay. (ECF No. 27 141 (referencing ECF No. 117-1 at 22).) Upper Deck opposes. (ECF No. 153.) The 28 written “Clarification” provides: 1 Consistent with Section 25 of the January 1, 2015 agreement and any subsequent agreements for similar services between The Upper Deck Company (“Upper Deck”) 2 and Jump 23, Inc. (“Jump”) (collectively, the “Parties”), the Parties agree Upper 3 Deck has the right to pursue legal claims against Pixels.com, LLC d/b/a Fine Art America for infringing use of Michael Jordan’s name, likeness, and other rights on 4 print-on-demand photographs, wall art, and other digital print collectible products 5 during the term of the Parties’ agreement.

6 As previously discussed, the “Clarification” is an addendum to the contract between 7 Jump 23, Inc. and Upper Deck—meaning it is not in violation of the parol evidence rule. 8 See K.C., 24 Cal. App. 5th at 1011–12 (quoting State Dep’t of Pub. Health, 60 Cal. 4th at 9 960) (“Finally, to the extent [contractual provisions] conflict, we apply the maxim that 10 ‘later enactments supersede earlier ones.’ ”). 11 Furthermore, the Court finds that the “Clarification” is not hearsay because “a 12 legally operative document that defines the rights and liabilities of the parties” is not 13 hearsay. See Stuart v. UNUM Life Ins. Co. of Am., 217 F.3d 1145, 1154 (9th Cir. 2000); 14 United States v. Rubier, 651 F.2d 628, 630 (9th Cir. 1981), cert. denied, 454 U.S. 875 15 (1981); Fed. R. Evid. 801(c) (defining hearsay as an out-of-court statement offered to prove 16 the truth of the matter asserted). Even if it were hearsay, the Court agrees with Upper Deck 17 that the “Clarification” would fall under the hearsay exceptions (ECF No. 153 at 3:4–9). 18 See Fed. R. Evid. 801(d)(1)(B)(i) (prior statement of declarant); Fed. R. Evid. 803(6) 19 (business records exception). 20 Nonetheless, it is unclear from the record whether the “Clarification” was properly 21 authenticated. See Fed. R. Evid. 901 (requiring authentication of evidence). Thus, the 22 Court DENIES Pixels’ Motion in Limine #4 but rules the document will not be admitted 23 until it is adequately authenticated at trial. (ECF No. 141.) 24 VIII. PIXELS’ MOTION IN LIMINE #5 (ECF No. 142) 25 Pixels moves to preclude evidence of the violation of the right of publicity. (ECF 26 No. 142.) The Court ruled on this Motion as part of its Order on the Motion for Summary 27 Judgment. (ECF No. 194 at 36:21–37:25.) Hence, the Court DENIES Pixels’ Motion in 28 Limine #5 AS MOOT. (ECF No. 142.) 1 CONCLUSION 2 Having considered Parties’ motions in limine, the Court hereby: 3 1. GRANTS Upper Deck’s Motion in Limine #1. (ECF No. 133.) 4 2. GRANTS Upper Deck’s Motion in Limine #2. (ECF No. 134.) 5 3. DENIES Upper Deck’s Motion in Limine #3. (ECF No. 135.) 6 4. GRANTS Pixels’ Motion in Limine #1. (ECF No. 136.) 7 5. GRANTS IN PART and DENIES IN PART Pixels’ Motion in Limine 8 #2. (ECF No. 138.) 9 6. DENIES Pixels’ Motion in Limine #3. (ECF No. 140.) 10 7. DENIES Pixels’ Motion in Limine #4. (ECF No. 141.) 11 8. DENIES Pixels’ Motion in Limine #5 AS MOOT. (ECF No. 142.) 12 IT IS SO ORDERED. 13 ~ 14 || DATED: September 9, 2026 (yatta Bahar □□ 15 H n. Cynthia Bashant, Chief Judge United States District Court 16 17 18 19 20 21 22 23 24 25 26 27 28