Bowman v. Topps: Winning the Battle and Losing the War

In my first contribution to this outstanding blog, I want to offer this summary of the litigation between Bowman and Topps that ultimately led to Bowman’s departure from the marketplace despite winning a federal circuit court decision over Topps. As an emeritus law professor, I hope to cover legal aspects of the industry as well as my own personal feelings as a collector for sixty years.

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1953 Bowman
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1953 Topps

For many of us, the “golden age of baseball cards” started in the decade following the end of World War II with the two primary companies of the era – the Bowman Gum Company and the Topps Chewing Gum Company emerging in the late 1940s to compete head-to-head in the early 1950s. As the fight for sales heated up in drug and candy stores, the two companies squabble over the contractual rights to the use of players’ pictures landed the two in federal court in New York.

The litigation that initially began with Haelen Laboratories, Inc., who acquired Bowman in 1952, suing Topps claiming unfair competition, trademark infringement, and a breach of exclusive contractual rights ultimately established the foundation for a newly named legal right – the right of publicity. Topps won the first round in the Eastern District of New York in a decision rendered by Judge Clarence G. Galston on May 25, 1953, involving a very technical aspect of whether or not Haelen had a “property interest” allowing it to proceed against Topps instead of pursuing a breach of contract actions against individual players for breaching their exclusive contracts.

On appeal to the Second Circuit Court of Appeals, Judge Jerome Frank noted that Topps was guilty of the tort of causing certain players to breach their exclusive contracts. More importantly for the development of the law, however, Frank went further determining that “We think that, in addition to and independent of that right of privacy . . . a man has a right in the publicity value of his photograph … i.e., the right to grant the exclusive privilege of publishing his picture … This right might be called a “right of publicity.”

Topps filed an appeal with the United States Supreme Court. On October 13, 1953, the Court refused to accept the appeal. While legal wrangling continued between the two parties, Haelen was acquired by Connelly Containers, Inc. They had little interest in card and gum business and settled with Topps in early 1956. So, despite their rival gaining the stronger legal claim, Topps ultimately emerged as the business victor in the fight between the two parties.

One of my favorite sets turned out to be Bowman’s last – the 1955 “color television set” cards.

55Aaron

55Berra

For a detailed discussion of the litigation, I strongly encourage you to read an article by my good friend Gordon Hylton titled “Baseball Cards and the Birth of the Right of Publicity: The Curious Case of Haelen Laboratories v. Topps Chewing Gum” published in volume 12 of the Marquette Sports Law Review available at this link.

 

Editor’s note:  Ed is a law professor at Notre Dame has written extensively on the intersection of baseball an the law, including in this book.  Follow him at @epedmondsNDLS.

12 thoughts on “Bowman v. Topps: Winning the Battle and Losing the War”

  1. Great to see the background on how this went down. I had always assumed it was the other way around. Is the Right of Publicity cited in other legal cases today?

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    1. Yes, the right of publicity is a major area of the law, and it was at the heart of the O’Bannon case involving the NCAA and name, image, and likeness rights and “pay-for-play” conversations.

      Liked by 1 person

  2. This is awesome. It’s going be a lot more difficult to publish those more sophomoric posts now.

    As a photo guy who enjoys baseball cards and how they intersect with photographic technology, I didn’t realize how important they are to the legal side of the business as well. I can’t help but think about the way that Bowman jumped gloriously into color photography in 1953 while Topps kept on producing paintings and how the publicity rights thing now often seems to depend on keeping a distinction between photography and other more-transformative media.

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    1. Baseball card revenue became important in the early years of the Major League Baseball Players Association. After Marvin Miller convinced the players to stop signing new agreements with Topps, they were able to convince the company to pay significantly more for the rights to use their photos.

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  3. Enjoyed the post. I only knew bits and pieces of this issue before. Love the color TV Bowman’s as well. Photos were all taken at Shibe Park since Bowman was based in Philly. Look forward to your next post.

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    1. I really like the 1950s cards of both Topps and Bowman in part because of the stadium pictures. In particular, I like the 1957 cards that show Yankee Stadium.

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  4. Great post. I’m also a professor of law, at a university in Japan, and I’m familiar with that case. In Japan there was a major case in 2006 in the Tokyo District Court that was somewhat similar – a group of 34 players in NPB (the main pro league, the plaintiffs included current Cubs pitcher Koji Uehara and a number of other prominent stars) sued their teams over the use of their images on baseball cards. The teams had contracted with several companies to produce baseball cards and video games (including BBM, which is kind of Japan’s version of Topps, and video game maker Konami). The player contracts with their teams had assigned to the teams the rights to use their images, but the players argued that the clause in their contract doing so did not allow the team to transfer the right to use their image to third parties (it did not explicitly state as much). They also argued in the alternative that, if it did, that it constituted an unfair trade practice under Japan’s Anti-Monopoly Act. The defendant teams argued that under the contract the players had transferred their publicity rights (the Japanese term is copied from the US) to the teams (and of course that it wasn’t an unfair trade practice).

    The Court dismissed the player’s claim so the end result was just a reaffirmation of the status quo and wasn’t associated with any groundbreaking changes in the industry (indirectly the case in the US in the 50s). Still I thin there is an interesting comparative law paper to be written somewhere in there!

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    1. Thanks for the comment, Sean. You are correct that a good comparative law paper could be written on these two cases and the others involving baseball and the right of publicity. I passed your reply on to my co-author Frank Houdek. We are gathering information for a potential sequel to our McFarland book, Baseball Meets the Law, that was published earlier this year.

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      1. Yes, it would be interesting. The Tokyo District Court actually discusses the New York decision in Shamsky v. Garan Inc. for a couple of pages, which is extremely rare for a lower court here (outside Supreme Court of Japan decisions its rare for other cases, especially foreign ones, to be cited in jurisprudence here).

        I’m contributing some chapters to an introductory textbook on Japanese law that will be published next year (well, that is the plan anyway) which will have some discussion of at least a couple of baseball related decisions (the chapter on torts will look at cases involving team and stadium owner liability to fans injured by foul balls. The first judicial decisions involving such claims were decided in 2011), and possibly this decision. If they would be useful to you as sources I can send you drafts once they are written (the cases themselves are only available in Japanese and I’m not aware of any commentary in English on them).

        Also I will order a copy of your book for our library, I’m quite interested in it.

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  5. I would, indeed, be quite interested. I have written some short pieces on recent foul ball cases that I would be happy to send along. Thank you for the request to your library to order a copy of our book.

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