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.
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.
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.