> What Does a Hologram Trademark Signify When the Hologram Isn’t There?–Upper Deck v. Pixels

> Upper Deck nevertheless seeks to enforce its IP rights in the print, both in the Michael Jordan imagery (it received via a license) and its hologram mark (the black shape in the upper left of the print–see the outline from the trademark registration).

Isn't this just straightforward copyright infringement? A photograph of a rookie card is a derivative work.

The original is presumably still under copyright. It's not reproduced for criticism, news reporting or parody where fair use would come into play. It's not subject to freedom of panorama, as a photo of a building or public statue might be. It's not an incidental inclusion, like a photograph of a celebrity wearing a shirt with a copyrighted design. The reproduction is clearly commercial, and reproduces a large portion of the copyrighted work. The usage isn't transformative commentary, like a Warhol painting of a Campbells Soup can might be.

Seems to me none of the factors that would make an unauthorised reproduction legal apply here.