Background
Upper Deck holds an exclusive license from Jump 23, Inc. (Michael Jordan’s company) to use Jordan’s name, image, likeness, and famous jersey number 23 on sports memorabilia. Upper Deck also owns the registered Upper Deck hologram trademark used on its trading cards. Pixels operates a print-on-demand business through pixels.com, designerprints.com, and fineartamerica.com. Pixels’ websites let third-party users upload images, set base prices, and tag images with searchable keywords; Pixels contracts with print vendors to manufacture and ship the physical prints ordered by customers, facilitates returns, and offers a money-back guarantee. Pixels earns the base price of every sale and a share of any markup.
Upper Deck found Pixels offering products featuring Jordan’s likeness and what appears to be Upper Deck’s hologram mark, all without authorization. It sued in March 2024 and amended its complaint to assert seven counts: Lanham Act false affiliation, false advertising, trademark dilution, and trademark infringement; California statutory and common-law right of publicity; UCL violation; and common-law unfair competition.
Both sides moved for summary judgment. Pixels asserted seventeen affirmative defenses, including a Section 230 defense covering Upper Deck’s California state-law claims. The court issued its original summary-judgment order on March 6, 2026 (ECF No. 186) but recognized that it had inadvertently inverted the result on Pixels’ Section 230 defense as to physical prints, so it issued an amended order on March 19, 2026 (ECF No. 189) correcting the scrivener’s error. The amended order is the operative ruling.
The Court’s Section 230 Holding
Two threshold points framed the analysis. First, Section 230’s intellectual-property carve-out at 47 U.S.C. § 230(e)(2) takes Upper Deck’s Lanham Act claims (Counts 1, 2, and 3) outside Section 230 entirely. Second, following Ninth Circuit law (Perfect 10 v. CCBill), the IP exception applies only to federal IP claims; state-law IP claims remain subject to ordinary Section 230 analysis. The court therefore had to decide whether Section 230 immunized Pixels against the state-law right-of-publicity, UCL, and common-law unfair-competition claims (Counts 4, 5, 6, 7).
Online conduct: immunity applies
To the extent Upper Deck’s state-law claims rest on Pixels’ role in displaying and filtering user-uploaded images on its websites — including its search engine and keyword-suggestion tools — Pixels was acting as an immunized publisher under Section 230(c)(1). The court relied on the Ninth Circuit’s Calise v. Meta Platforms (treating moderation of third-party ads as quintessential publishing conduct), Roommates.Com (search engines that do not materially contribute to the unlawfulness of content fall within editorial discretion immunized by (c)(1)), and Google’s keyword-suggestion tool cases (such tools are “neutral” insofar as users ultimately determine what content to upload). Pixels does not create the user-uploaded images; its website-side functions are publishing functions.
Offline conduct: immunity does not apply
To the extent Upper Deck’s state-law claims rest on Pixels’ offline conduct — hiring and coordinating print and shipping vendors, manufacturing and selling the physical prints that contain Jordan’s likeness and the hologram mark, facilitating product returns, and offering a money-back guarantee — Section 230 does not apply. The court relied on Atari Interactive v. SunFrog (manufacturing, distributing, selling, and fulfilling sales of merchandise for third parties is not immunized publishing conduct under (c)(1)), the D.C. Circuit’s reasoning in Parisi v. Sinclair (Amazon’s Section 230 immunity for online book descriptions does not extend to selling and distributing physical copies), and Canvasfish.com v. Pixels.com (W.D. Mich. 2024), which had reached the same conclusion against Pixels itself on essentially identical facts. The Ninth Circuit’s Calise decision likewise observes that Section 230 publisher immunity does not include “processing transactions.”
The bottom line on Section 230
The court granted Pixels’ summary-judgment motion on Section 230 (Affirmative Defense 8) to the extent Upper Deck seeks to hold Pixels accountable for displaying allegedly infringing images on its websites or for the operation of its content-filtering and search tools. It denied the motion to the extent Upper Deck seeks to hold Pixels accountable for the sale and distribution of physical prints containing those images. Upper Deck’s cross-motion as to that physical-sales subset was granted; its cross-motion as to the website-display subset was denied.
Other notable rulings (briefly)
Although Section 230 is the focus of this writeup, the same order addressed multiple other affirmative defenses with practical consequences for the parties:
- The court rejected Pixels’ Rogers / Jack Daniel’s First Amendment defense (Affirmative Defenses 4 and 6) on summary judgment, holding that Pixels uses Jordan’s marks to identify the source of its own products — the precise scenario in which Jack Daniel’s Properties, Inc. v. VIP Products LLC (2023) says Rogers does not apply. Pixels may still raise expressive use as relevant to the likelihood-of-confusion analysis at trial.
- Upper Deck’s trademark-dilution claim related to the Upper Deck hologram mark (Count 2) failed at summary judgment because the mark was not shown to be famous.
- Upper Deck’s California right-of-publicity claims survive in part; California’s two-year statute of limitations cabins the damages window.
- The court applied a three-year statute of limitations to the Lanham Act claims and addressed laches as relevant to claims falling outside that period.
Key Takeaways
- Print-on-demand platforms have a clean structural defense to website-content claims under Section 230(c)(1), but no Section 230 cover for the physical manufacturing, sale, and distribution of products containing third-party content. The two functions need to be analyzed separately on summary judgment, not lumped together.
- Section 230’s intellectual-property exception (§ 230(e)(2)) continues to be read narrowly in the Ninth Circuit: federal IP claims are categorically excluded from Section 230, but state-law IP claims (including right of publicity and UCL) remain subject to ordinary Section 230 analysis. That matters for plaintiffs deciding how to plead.
- The reasoning here aligns with Canvasfish.com v. Pixels.com (W.D. Mich. 2024), Parisi v. Sinclair (D.D.C. 2011), Atari Interactive v. SunFrog (N.D. Cal. 2019), and the recent Calise v. Meta (9th Cir. 2024) framing — together producing a stable cross-circuit doctrine on the “online display vs. offline sale” line.
- Watch for amended orders. The court’s March 6 order initially stated the opposite result on the physical-print question; the March 19 amendment corrected the scrivener’s error. Treat the March 19 order as the operative ruling.
- Jack Daniel’s v. VIP Products has materially narrowed Rogers as a defense in trademark cases where the defendant uses the senior mark for source identification of its own goods. Print-on-demand vendors selling prints featuring third-party celebrities and trademarks should not expect Rogers to provide a clean escape on summary judgment.
Why It Matters
This opinion is one of the clearest current illustrations of how Section 230 applies to print-on-demand platforms — a business model that sits awkwardly between traditional UGC website publishing (which Section 230 was built to protect) and traditional product manufacturing and sales (which Section 230 has never protected). Companies that operate POD or similar marketplaces — merchandising platforms, dropshipping intermediaries, custom-product fulfilment vendors — should expect courts to bifurcate their conduct the same way Chief Judge Bashant did here: the website pages are publishing; the physical products and the supply chain behind them are not.
For brand owners, this opinion is also a roadmap. Pleading both federal Lanham Act claims and state-law right-of-publicity / UCL claims is the right move: the former are categorically outside Section 230, and the latter, when tied to the platform’s offline manufacturing-and-selling conduct, also survive the immunity defense. Pleading state-law claims tied to the platform’s website conduct alone is a losing strategy in the Ninth Circuit.
Source
The amended order is available here: The Upper Deck Co. v. Pixels.com, LLC — Amended Order on Cross-Motions for Summary Judgment (Mar. 19, 2026).