A preliminary injunction hearing was held the other day in Los Angeles in Buzz Aldrin’s right of publicity lawsuit against Topps, which makes trading cards. Â He accuses Topps of including his image and likeness on an “American Heroes” trading card and package without his permission, and for its own commercial benefit, in violation of California statutory and common law right of publicity law. Â Topps replies that its use of the image/likeness is protected by the First Amendment. Â The photograph itself, I believe, is in the public domain as a work of the US Government. Â The photograph was taken by Neil Armstrong, who was (I believe) a federal employee at the time, acting in his official role.
Some relevant photographs: