Death and Taxes and Baseball Card Litigation [Part I]

A Very Brief History of the Right of Privacy

Although perhaps difficult to believe, individuals were once without legal recourse if their names or likenesses were used commercially without permission. The “right of privacy” was essentially without basis at common law in the United States before 1902. Emerging privacy rights, however, would eventually become a central battleground as trading card makers fought to secure the pocket change of (mostly) American boys after World War II. The resulting litigation would shape the baseball card industry and provide Topps with nearly unassailable baseball card dominance by the 1960s. The story starts, however, at the turn of the twentieth century with a teenaged girl’s surprising discovery in a Vermont tavern.

As an 18-year-old from Rochester, New York, Abigail Roberson visited an “out-of-the-way tavern” in Vermont while on vacation. There she discovered an advertisement for Franklin Mills flour prominently featuring her photograph. The shocking discovery made Roberson physically ill—Franklin Mills had used the photograph without her knowledge or consent and refused to disclose how they obtained the image.

Franklin Mills advertisement featuring photograph of Abigail Roberson

Roberson was humiliated by use of the photo (although admittedly flattering) and learned that some 25,000 copies of the advertisement had been distributed to stores, warehouses, saloons, and other public places. She sued to prevent the further distribution of the poster and asked for $15,000 in damages (approximately $475,0000 today). The trial court found in Roberson’s favor and the appellate division affirmed.

The case went up to New York’s highest court, however, where Chief Judge Alton Parker wrote for the 4-3 majority that Roberson had failed to state a cause of action because her complaint did not allege defendants acted maliciously or published a defamatory photo. They held that Franklin Mills was lawfully able to use Roberson’s photograph for its advertising without having to ask or compensate her.

Not surprisingly, a wave of public outrage followed Roberson’s loss. In the wake, the New York legislature enacted laws to codify the right of privacy, which allowed an aggrieved party to seek court intervention to enjoin use and sue for monetary damages if a photograph was used intentionally without consent. 

A Bat Fight: Hanna Manufacturing Company v. Hillerich & Bradsby Co.

The baseball world would first see a battle over privacy rights in 1935, when Louisville Slugger sued the Hanna Manufacturing Company alleging Hanna was infringing on its trademarks by selling bats bearing the names of players under exclusive contract to Louisville Slugger, such as Babe Ruth and Lou Gehrig.

The bats at issue retailed “for as much as $2.50 each” (approximately $28.00 today) and were bought by customers who were “careful and well-informed.” Louisville Slugger took pride in crafting bats of the size, shape, and balance that each major league player preferred and for a small (undisclosed) consideration, these players gave Louisville Slugger the exclusive right to use the player’s name, autograph, and photograph in connection with the sales of baseball bats for a lengthy term, typically 20 to 25 years. The contract signed by the players did not require them to use Louisville Slugger bats, however. In fact, Lou Gehrig had used Hanna bats for two years despite having signed with Louisville Slugger.

Hanna promotional material

Hanna countered that the bats it sold bearing the names of “Babe Ruth” and “Lou Gehrig” were not sold based on the player’s name having been stamped on the bat, but because the purchasers (often college teams) wanted bats of that player’s particular shape and style. The district court found for Louisville Slugger, “baseball players, like any other individuals, have a property right to their names that has been assigned by certain players to Louisville Slugger, and Louisville Slugger used and advertised such right and has such right exclusively, irrespective of any trademark or unfair competition law.”  

The appellate court reversed, however, remarking that there were some “interesting discussions as to a ‘right of privacy’” ongoing but that a “public man waives his right so that the public becomes entitled to his likeness.” The court continued, “fame is not merchandise. It would help neither sportsmanship nor business to uphold the sale of a famous name to the highest bidder as property.” [Wow is this shortsighted when viewed in the modern athlete endorsement landscape!]

The court was further convinced that the “name on the bat” was commonly understood to refer only to the model or style of the bat and implied no endorsement by the player. The court specifically ruled that Hanna could market bats bearing players’ names as long as the descriptive mark included the words “style” or “shape” conspicuously, such that a Hanna bat marked “Babe Ruth style” would be acceptable. Ultimately, those Louisville Slugger contracts operated only to prevent the ballplayers from objecting to Louisville Sluggers’ use of their names and likenesses.

“No matter what may be said about the habits and nature of ball players, they are not naïve.” It would not be long before “right of privacy” claims would invade the baseball card industry.

The Big Cat Takes a Swipe

On August 26, 1941, Johnny Mize went 4-for-8 with a double and home run as his Cardinals split a Tuesday doubleheader against the Dodgers at Ebbets Field in Brooklyn. That same day, Mize’s attorneys filed a right of privacy lawsuit against Gum Products, Inc. in Cambridge, Massachusetts alleging that it had used photos of Mize in its Double Play Gum baseball card set without his permission.

Double Play cards featuring Johnny Mize

In what appears to be the first baseball card-related lawsuit, Mize asked the court for a restraining order and damages commensurate with his appearance on some 140,000 cards issued by Gum Products. On September 5, the court issued a temporary injunction that prevented Gum Products from using Mize’s name or picture further in connection with the sale of gum. Mize’s “right of privacy” victory was short lived, however.

At a subsequent hearing on June 25, 1942, Gum Products admitted it had not directly obtained Mize’s permission, but had done so through the purchase of the picture from an agency. The defense also argued that as “a leading ballplayer of the country,” Mize had no right of privacy in connection to the publication of his name or photograph. On June 28, Judge Francis Good dismissed the case “without comment.” Despite their ultimate victory, Gum Products never produced another set of baseball trading cards.

Leaf: Blown Away

In 1949, Bowman Gum Company and a number of individual players, including Warren Spahn, sued Chicago-based Leaf Brands, Inc. and several east coast gum wholesalers for distributing cards featuring pictures of ballplayers under contract with Bowman. The lawsuit was filed in Philadelphia, where Bowman was based, and a friendly hometown judge issued a temporary restraining order that prohibited Leaf from selling cards with its gum anywhere in the United States (straining the bounds of enforceability). 

1949 Leaf cards of individual ballplayers who, along with Bowman sued Leaf

Leaf took the defeat seriously and reached a settlement with Bowman in which Leaf agreed to withdraw from the baseball card business until at least 1951. Leaf tried in vain to work out arrangements with Topps to share printing rights, but Topps was not interested.

Bowman v. Topps: Birth of the Right of Privacy

Topps first dipped its toe in the baseball card market with its Magic Cards release in 1948. The 19-card baseball series was part of a much larger modern Allen & Ginter-like set that also included cards of football players, boxers, movie stars, famous explorers, and dogs. The tiny cards (roughly 1” x 1½”) featured sepia-toned photos that would appear on the card when exposed to sunlight. The baseball checklist consisted of highlight cards from the 1948 Cleveland-Boston World Series and individual cards of Indians player/manager Lou Boudreau and Braves 3B Bob Elliott. The balance of the baseball checklist was comprised of retired greats such as Babe Ruth, Walter Johnson, Rogers Hornsby, and Joe Tinker/Johnny Evers.  

In 1951, Topps issued a set of baseball cards featuring current players in direct competition with Bowman, who had produced “Play Ball” sets from 1939-1941 and their own branded sets starting in 1948. To create their set (commonly referred to as “red backs”), Topps licensed rights to the players’ names, photos, and biographical information from a third-party company, Players Enterprises, Inc. This initial set of 52 cards was designed like a deck of cards and was intended to be played as a game. The cards were distributed in a rather nondescript box of “’Doubles’ Baseball Playing Cards” that identified Topps cryptically (and perhaps by design) only by “T.C.G. Brooklyn 32, N.Y.” on the bottom of the box and wrappers. When Players Enterprises merged with Russell Publishing Company in April 1951, Topps was given an additional stable of players under contract that allowed them to distribute a second series of 52 cards (“blue backs”) sold in a redesigned box as “Baseball Trading Card Candy.”

1951 Topps box and cards

Unhappy with the competition, Bowman sued Topps following their release of the red/blue back cards claiming trademark infringement, unfair competition, and impairment of contract rights. They sought to prevent Topps from selling any product having the appearance of gum with the word “baseball” connected to it.

Topps argued that they had lawfully obtained rights from Players Enterprises to use the names, pictures, and biographical data shown on the cards; denied there was any confusion with Bowman’s products; and  claimed that the contracts Topps had with the players constituted a waiver of the player’s right to privacy—but conveyed no rights on Bowman to sue Topps. Topps also argued that it had not infringed on Bowman’s contracts with players because it had inserted a caramel candy—not gum—with its cards.

The evidence established that Bowman had contracted with 340 baseball players through Art Flynn Associates for the right to use the name, signature, photograph, and descriptive biological sketch of each. In exchange, Bowman paid $100 and provided a wristwatch to each player for 1951. (The 1951 contract included the word “confections” for the first time, which seemingly presaged knowledge Topps was intending to issue a baseball card set with candy.) The players were also eligible to complete for the Jack Singer Annual Good Sportsmanship awards sponsored by Bowman.

Topps proved it had contracts with 248 active major league players through the rights acquired by Players Enterprises and Russell. These contracts gave Topps the right to use players’ names, pictures, and biographical data in connection with the sale of candy in 1951 and candy and chewing gum for 1952.

Following a bench trial, Judge Clarence Galston ruled in Topps’ favor and dismissed the case. He found it significant that there was no player biographical data on the reverse side of the 1951 Topps cards; the packaging between Bowman and Topps was different; and there was no record of any confusion between purchasers of the two products.

More importantly, the court (in reliance on § 51 of New York’s Civil Rights Law enacted in the wake of Roberson) held that the contracts Bowman made with the players conveyed no rights on Bowman to sue a third-party, such as Topps. Accordingly, only the individual ballplayer would have a cause of action for an injury to his person. No “right of privacy” was applicable to a business.  

Bowman v. Topps: The Appeal and Establishment of the “Right of Publicity”

Bowman took the matter up on appeal to the Second Circuit claiming their contracts were exclusive for use in connection with the sale of gum and that Topps deliberately induced the ballplayers to sign contracts giving Topps the same rights. Topps continued to argue that even if Bowman proved its case, there was no actionable wrong because any contract between Bowman and a ballplayer did not convey any right on Bowman to enforce those rights as to third parties.

Just prior to the start of the 1953 season, the appellate court formally established the “right of publicity” by way of recognizing an enforceable property right in each player’s name and likeness. This was huge. Accordingly, the ballplayers could grant exclusive rights to their pictures that could be enforced by third parties, such as Bowman. “For it is common knowledge that many prominent persons (especially actors and ballplayers), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways. This right of publicity would usually yield them no money unless it could be made the subject of an exclusive grant which barred any other advertiser from using their pictures.” That the appellate court recognized the right of publicity was an unprecedented hallmark for ballplayers’ ability to control (and cash in) on their names and likenesses.

The case was sent back to Judge Galston to determine  if Topps had knowingly used photographs of players under contract with Bowman. This was a complicated case-by-case task in that up to six separate contracts were now at issue for players who appeared in any of the 1951, 1952 and 1953 sets issued by Bowman and Topps.

Billy Pierce was 1 of just 24 players to appear in each set issued by Bowman and Topps 1951-1953

By May 1953, both Topps and Bowman had continued to issue sets of fluctuating sizes as their competition to ink players to contracts intensified. In fact, Topps pulled six cards from its 1953 set due to the ongoing litigation. The court also required Topps to remove the cards of players it was enjoined from using from stacks of cards printed but not yet wrapped, which allowed Topps to distribute any offending cards that had already been packaged. (Unfortunately, identification of these particular cards is not immediately discernable from the published decision.)

Bowman v. Topps: The Aftermath

The litigation continued, however, and on May 10, 1955 Judge Galston remanded the case to the New York state courts. This litigation was expensive for Bowman, which spent in excess of $110,000 in legal fees ($1.12 million today); it cost Topps only slightly less. Bowman had been losing money each year since 1952, culminating with a net loss in 1954 of $224,000 (approximately $2.3 million today).

In April 1955, Bowman was merged into cardboard box manufacturer Connelly Container Corporation. Connelly’s stewardship of the Bowman gum and trading card brand was fleeting, however, as it looked to shed the gum/baseball card line, which had averaged between 15% to 30% of total sales. On January 20, 1956, Topps settled the litigation with Connelly by acquiring Bowman’s gum-producing facilities, baseball player picture rights, and an agreement on the part of Connelly not to manufacture gum or picture card products for five years in exchange for $200,000 (approximately $2 million today). [Connelly was apparently much more interested in Bowman’s other business pursuits at the time of the merger, including an all-nylon squeeze bottle in development.]

All the while, Leaf wanted to get back into the baseball card business. After the Bowman litigation settled, Leaf again approached Topps with a proposal to share player rights. With main competitor Bowman eliminated, Topps had no interest in making any arrangement with Leaf. In fact, Topps sent a letter to the player representative of each ballclub on August 14, 1956, indicating it was not going to be sharing its baseball card picture rights with any other companies.

By 1959, Topps was the largest manufacturer of bubblegum in the United States with total sales of $14 million annually (approximately $133 million today). Leaf would eventually get back into the baseball card business in 1960 when it produced a black and white 144-card set that was sold with marbles.

Fleer Stirs the Pot

At the end of 1958, the Frank H. Fleer Corporation launched an offensive against Topps for control of the baseball card market by offering ballplayers contracts that would become effective upon the expiration any existing contracts with Topps. This started with a mail solicitation in December and followed up with visits at training camps in 1959 by ten of its sales and marketing personnel. Fleer was even able to enlist representatives who were active players on teams such as Charlie Lau and Chuck Cottier.

The Fleer contracts paid players $5 as initial consideration and $125 upon reaching the major leagues. Further, Fleer offered a monetary gift or reward for players who provided Fleer with copies of their Topps contracts. After learning of this practice, Topps stopped sending copies of its contracts to the players (but would provide information regarding the terms of the contract upon request). Topps was flooded with requests once they started offering $75 for the players to sign extensions.

Fleer successfully lured Ted Williams and produced an 80-card set of the mercurial slugger in 1959. The Williams set accounted for $250,000 in sales (approximately $2.4 million today), which was just a fraction of the $3.8 million (approximately $36 million today) worth of Topps baseball cards sold in 1959.

During the 1960 and 1961 seasons, Fleer issued sets featuring “Baseball Greats,” each of which featured Ted Williams and a cast of retired Hall of Famers and stars. Sales of these sets again paled in comparison to Topps’ baseball offerings. Leaf also issued a small set of current player cards in 1960, sold along with marbles. The 1960 Leaf contract paid the players $50 and provided for rights when distributed in combination with “marbles or other non-edible novelties such as charms made of plastic or metal.”

Fleer cards from 1959 Ted Williams set and 1961 Baseball Greats set

The Federal Trade Commission filed a complaint against Topps on January 30, 1962—with Fleer’s enthusiastic support—alleging that Topps violated § 5 of the Federal Trade Commission Act, which made illegal “unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce.” This section also outlawed business practices that were “unscrupulous, oppressive, exploitative, or otherwise indefensible.” The FTC alleged further that Topps created a monopoly in the manufacture and distribution of baseball picture cards “contrary to public policy” and “to the detriment of free and open competition.” The Hearing Examiner made sure to emphasize that “[m]onopoly is condemned without qualification,” somewhat ironic considering that Major League Baseball enjoys the protections of a legally sanctioned monopoly.  

At the heart of the complaint was the allegation Topps had completely foreclosed Fleer from the baseball card market by entering exclusive contracts with almost all major league baseball players and practically all minor league players with major league potential. It was further alleged that Topps had the power to impose tie-in requirements and imposed retail price control on vendors because it “wanted to know about anybody who was not selling the cards at six for a nickel.” On the heels of the FTC filing, Fleer bombarded college coaches with correspondence attacking Topps’ contracts and accusing Topps of monopolistic practices that were under investigation by the FTC.

Page 1 of the 98-page FTC decision

Taking a page from their prior battle with Bowman, Topps began drafting their contracts to give themselves broader rights and further restrict the players from contracting with others. In 1957, the Topps contract gave exclusive rights to cards associated with gum and candy; in 1958, Topps added “confections” to the list; in 1959, the Topps’ contract extended to cards sold without gum in bulk vending boxes (despite the fact that vending boxes were an exceedingly small part of its total sales); and in 1960, the Topps contract included an agreement by the player not to enter into any other contracts while under contract with Topps. By May 1961, Fleer had contracted with only five major league ballplayers who had not contracted with Topps.

At the time the FTC got involved, Topps had exclusive rights with 95% of major league baseball players and contracts with more than 6500 ballplayers in both the major leagues in minor leagues. Topps first approached players in the minor leagues with a payment of $5 to sign a contract that would pay the player $125 per year for five years if he were promoted to Major League Baseball. Those players who reached the big leagues were paid regardless of whether Topps issued a card of the individual. (Topps would not have to pay if it decided not to market a complete series of cards, except they had to pay the Yankees either way.) Topps’ network included “agents” such as scouts, managers and players who were compensated as much as $100 a year, plus five dollars for each ballplayer signed, or other “gifts, tips or small payments” upon delivery of signed contracts.

Fleer claimed their representatives were physically excluded or intimidated from soliciting players at the Los Angeles Dodgers’ and Detroit Tigers’ training camps “by goon or similar methods.” In the face of Topps’ established network, Fleer had signed only 20 major league players by 1962 and 27 by 1963. Undeterred, Fleer issued a 66-card set (plus an unnumbered checklist) of active major league players in 1963, dwarfed by the 576-card set issued by Topps that year.

The FTC hearing examiner also considered evidence that Topps actively sought to impose market restrictions on other food and beverage manufacturers who used baseball picture cards as promotional devices. General Foods included baseball cards on packages of Post Cereal from 1961 to 1963 and Jell-O from 1962 to 1963. Topps took issue with the Post Cereal promotion that offered a sheet of ten cards (not attached to a cereal box) for two box tops and ten cents, alleging this was an infringement on their rights to sell cards individually. Topps subsequently entered into agreement that Post would pay a license and royalty fees in connection with its distribution of cards alone under the offer. Topps also objected to the set issued in 1958 by Hires Root Beer. Ultimately, Hires made a deal that allowed them to use photos of the players without having to pay Topps, but never issued another set.

The Topps “Monopoly”

Generally speaking, a monopoly is the control of “an economically meaningful market.” In the FTC matter, all that needed to be established was that baseball cards were economically meaningful, and that Topps controlled the market. There was no need to establish that Topps intended to monopolize; nor was it necessary to show Topps exercised its monopoly power.

Hearing Examiner Herman Tocker issued his initial decision on August 7, 1964, after a full evidentiary hearing. He found that Topps had “monopolized the sale of current baseball card picture cards both as separate articles of commerce and as a promotional device for the sale of confectionery products,” in violation of § 5 of the Federal Trade Commission act—even though Topps’ exclusive contracts and other practices were not unfair when viewed separately. Although it had not actually done so, Topps could have controlled the baseball trading card market and “had the power to increase or decrease at will the price when sold alone or when in packages of gum and cards.” Tocker found further that Topps was in violation of § 2 of the Sherman Antitrust Act—a misdemeanor punishable by a fine up to $50,000 or imprisonment.

Topps was ordered to cease and desist from entering or extending exclusive contacts with ballplayers, coaches, and managers for terms in excess of two years and enforcing any contracts in effect after October 31, 1966, along with an order to provide copies of the contracts to the ballplayers. Tocker also opined “[o]bviously, a single picture card, in and of itself, has little value” and “last year’s cards without current statistical content are about as valuable as yesterday’s newspaper,” observations that have not aged well.

The FTC Appeal

Both sides appealed the Hearing Examiner’s decision and order. FTC Commissioner Philip Elman thoroughly reviewed the evidence on record and reversed, holding Topps did not have a monopoly in the production of baseball cards because they lacked economic significance and alone were not “meaningful in terms of trade realities.”

Elman specifically decided that Topps’ control over baseball picture cards used to promote confectioneries was not detrimental to fair competition and that baseball cards were not so unique and indispensable a promotional technique that other bubblegum manufacturers could not compete on fair and equal terms with Topps. Elman cited several examples of successful promotional trading card series such as football players, retired baseball players, and non-sport sets featuring the Beatles and “Spook Theatre.” Moreover, but for the fact that Topps was the largest seller of bubblegum, there was no proof of any correlation between its superior market share and the sale of baseball picture cards.

Ultimately, Topps’ business model—tirelessly signing as many minor-league players as possible with hopes they would become big leaguers—was not an unfair or monopolistic practice. Because no monopoly was proven, the complaint was dismissed on appeal.

Fleer in the late 1960s

Despite its failure to break Topps’ hold over “current baseball picture cards,” Fleer remained the second largest manufacturer of bubblegum in the United States. Before the 1966 season started, Fleer announced it would be issuing a 66-card set dedicated to Dodgers pitcher Don Drysdale and had a representative, Bob Quinn, continuing to visit Florida training camps looking to sign players to contracts.

The “Drysdale set” Fleer issued in 1966, however, was actually the “All Star Match Baseball” game, with each of the game cards including a black and white puzzle piece of Drysdale on the reverse, such that all 66 cards were necessary to complete the puzzle.

1966 Fleer All Star Match card F35 (front/back) and wrapper

Fleer had also tried to get the jump on Topps by sending contracts and $25 checks to all players chosen in the newly implemented draft, which upset some college coaches who feared their players could jeopardize their amateur status by cashing those checks.

Despite Fleer’s continued efforts to erode Topps’ market stranglehold, Fleer ultimately acquiesced and subsequently sold all of its baseball contracts to Topps in 1966 for $385,000 (approximately $3.4 million today). This would not be the last we would hear from Fleer at the courthouse, however.

To be continued…

SOURCES/NOTES:

Websites

www.baseball-reference.com

www.retrosheet.org

www.tcdb.com

Cases

  • Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 541, 64 N. E. 442 (N.Y. 1902). This right of privacy is generally attributed to this article in the 1890 Harvard Law Journal by Samuel Warren and Louis Brandeis.
  • Federal Base Ball Club of Baltimore v. National League of Professional Base Ball Clubs, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898, 26 A.L.R. 357 (1922). Major League Baseball has a legal monopoly, “[t]he business is giving exhibitions of baseball, which are purely state affairs. It is true that in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and States. But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business.”
  • Hanna Mfg. Co. v. Hillerich & Bradsby Co., 101 A.L.R. 484, 78 F.2d 763 (5th Cir. 1935). Defendant Hillerich & Bradsby Co. will be referred to as “Louisville Slugger,” its more widely used tradename today.
  • Bowman Gum, Inc. v. Topps Chewing Gum, Inc. 103 F. Supp. 944 (E.D.N.Y. 1952). Topps also issued 9-card set of team photos in 1951 (Boston Red Sox, Brooklyn Dodgers, Chicago White Sox, Cincinnati Reds, New York Giants, Philadelphia Athletics, Philadelphia Phillies, St. Louis Cardinals, Washington Senators) and Major League All-Stars/Connie Mack All-Stars. These sets do not appear to have been subject of the litigation between Topps and Bowman.
  • Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866 (2nd Cir. 1953). In April 1952, Bowman Gum shareholders approved the change of the company name to Haelan Laboratories. Philadelphia Inquirer, April 9, 1952: 4. Accordingly, the ensuing litigation lists Haelan—and not Bowman—as a party.
  • Haelan Laboratories v. Topps Chewing Gum Co., 112 F.Supp. 904 (E.D.N.Y. 1953)
  • Haelan Laboratories v. Topps Chewing Gum, 131 F. Supp. 262 (E.D.N.Y. 1955).
  • In re Topps Chewing Gum, Inc. 67 F.T.C. 744 (1965). Baseball card sales in 1960: Topps $3,638,000 (approx. $34 million today), Fleer $300,000 (approx. $2.8 million today), and Leaf $100,000 (approx. $934,000 today); in 1961: Topps $3,475,000 (approx. $32 million today) and Fleer $355,506 (approx. $3.3 million today).  The second series of Fleer’s 1961 Baseball Greats accounted for an additional $85,000 in sales (approx. $778,000 today) for 1962.  Though distributed under the company name “Sports Novelties Inc.,” the 1960 Leaf issue is referred to in the hobby as “Leaf” and is referred to similarly herein. The FTC hearing examiner described the Beatles as “a group of singing troubadours imported from England”. Additionally, for football cards, the contract was made with the league and not the individual players. The players received no direct compensation—all money was channeled to league pension funds.

Articles

  • “The Week in a Busy World,” Atlanta Constitution, May 5, 1901: 42.
  • “Chewing Gum Stuck with Suit by Mize,” Daily News (New York), August 27, 1941: 284.
  • “Johnny Mize Asks Damages from Cambridge Gum Firm,” Boston Globe, June 25, 1942: 11. Mize appeared on two cards in the set: Nos. 39/40 with Enos Slaughter and Nos. 99/100 with Dan Litwhiler. It is unclear how many of each comprised the total.
  • “Mize of Cardinals Wins Court Test on Use of Name,” Boston Globe, September 5, 1941: 23.
  • “Mize Suit Against Gum Firm Dismissed,” Des Moines Register, June 28, 1942: 16.
  • “Spahn, Five Others Take Action in Gum Distribution Controversy, Boston Globe, May 4, 1949: 23. Although this case attracted little press, that Warren Spahn was involved is not surprising based on the battle he would have in the future regarding the publication of the “Warren Spahn Story,” which he contended painted him in a false (but positive) light and was published without his consent.
  • “A’s Stars Get Writ to Bar Use of Pictures on Gum,” Philadelphia Inquirer, May 7, 1949: 16.
  • “Haelan Merged into Connelly,” Philadelphia Inquirer, April 28, 1955: 30.
  • Bob Rathgeber, “Young Bob Quinn: Bubble Gum Exec,” Bradenton (Florida) Herald, March 17, 1966: 14.
  • Wayne Shufelt, “’Gummed’ Up,” Tampa Times, April 2, 1966: 10.
  • Paul Bedard, “Bubble May Burst in Baseball Card Suit,” Washington Post, June 20, 1979.
  • Rich Mueller, “1953 Topps Missing Numbers Revealed,” Sports Collectors Daily, July 29, 2014, https://www.sportscollectorsdaily.com/1953-topps-missing-numbers-revealed/, last accessed December 3, 2021. Numbers 253, 261, 267, 268, 271 and 275 were reportedly supposed to be cards for Joe Tipton, Ken Wood, Hoot Evers, Harry Brecheen, Billy Cox, and Pete Castiglione.

Special Thanks

Special thanks to Jason Schwartz for reviewing this article and offering many helpful suggestions.


Author: John Racanelli

John is a Chicago lawyer with an insatiable interest in baseball-related litigation. When not rooting for his beloved Cubs (or working), he is probably reading a baseball book or blog, planning his next baseball trip, or enjoying downtime with his wife and family. He is probably the world’s foremost photographer of triple peanuts found at ballgames and likes to think he has one of the most complete collections of vintage handheld electronic baseball games known to exist. John is a member of the Emil Rothe (Chicago) SABR Chapter and Co-Chair of the SABR Baseball Landmarks Research Committee.

18 thoughts on “Death and Taxes and Baseball Card Litigation [Part I]”

  1. I learned a great deal from this piece. Interesting that the FTC changed their mind about the economic significance of cards, but not surprising. My wife was an attorney for the FTC in Seattle for 35 years. She had several merger investigations scuttled by the same economic significance argument. She worked on the Topps/Upper Deck merger. It was allowed due to lack of barriers for competitors. Expectional article. I look forward to the next installment.

    Liked by 1 person

  2. This was an outstanding post. My question is: Why was this not in Baseball Research Journal? If it was submitted, I hope to heck it wasn’t rejected.

    Liked by 1 person

  3. Wow! Like Paul D. said, this is truly fascinating, with such thorough reporting. Love all the rocks that were overturned here. Looking forward to ensuing posts – so much cool history in there.

    Liked by 1 person

  4. Very nice article and an interesting topic. I do think any discussion of the history of the right to privacy has to include some reference to its origins with Warren and Brandeis though.

    Liked by 1 person

    1. Thanks for the kind words!

      You make a fair point. In my defense, I wanted the introductory “A Very Brief History of the Right of Privacy” to be just that for the intended audience. I chose to begin the article with the facts and holding from a case, not the Warren/Brandeis law review article, because I hoped to keep the piece as approachable as possible for non-lawyers.

      Cheers!

      Like

  5. Wonderful work here, John, and something that’s close to my heart. Timing is interesting, as I’m looking at 1930s baseball sets right now and I suspect Christy Walsh’s representation of Ruth and Gehrig determined why each of them appeared (or didn’t appear) in a given year for Wheaties, Goudey, National Chicle, and so on. Do you know any details of how Walsh handled things when someone used their likenesses without prearranged compensation?

    Like

    1. Thanks! I am not aware of any lawsuits filed by Walsh for unauthorized use but I know the manufacturers of the Baby Ruth candy bar sued Ruth in 1931 (and won) when he tried to market a Babe Ruth candy bar.

      The court opined “that confusion is likely between appellee’s mark, ‘Baby Ruth,’ and appellant’s mark, ‘Ruth’s Home Run, George H. `Babe’ Ruth,’ is apparent.”

      Like

  6. A little late to the game here, but great post, John! My first bat (around 1977) was a Hanna Batrite Jim Lefebvre model. Considering he had retired after the 1972 season and played across the country, I had no idea who he was. I am guessing the price was right when my Dad bought it for me. 🙂 In any case, I notice that mine doesn’t say “Jim Lefebvre style,” like many post-1935 Hanna bats seem to say (e.g., “Mantle style” can be found on the web a lot)–it just has his signature. I’m not sure whether Jim Lefebvre was someone that Louisville Slugger passed on, so Hanna had him exclusively, or if the arrangement changed over time. In any even, looking forward to the rest of your series!

    Like

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