The Athlete's Two Bodies:
Reflections on the Ontology of Celebrity


By Brian L. Frye

 

This essay appears in the print version of INCITE #7/8: Sports.

Detail of frontispiece of Thomas Hobbes’ Leviathan (1651). Etching by Abraham Bosse with creative input from Hobbes. From the internet. (Click for full image)

 

Introduction
In his seminal study of medieval political theology, The King’s Two Bodies, Ernst Kantorowicz observed that in the medieval era legal scholars conceptualized the king as the union of two “bodies”—the “body natural” or physical body, and the “body politic” or sovereign body—which together formed a “body corporate.”1 Echoing the theological duality of the body of Christ, the king’s body natural was tangible and mortal, but the king’s body politic was intangible and immortal. The demise of the king’s body natural simply caused the migration of the body politic from one body natural to another. The king is dead; long live the king.

Among other things, the duality of the king’s body affected the legal status of the king’s actions. For example, the king could take personal possession of property in the capacity of the body natural, but not the body politic. The property of the body politic belonged only to the state. Moreover, in the union of the king’s two bodies, the perfection of the body politic cured any imperfection in the body natural, even its mortality, for the union of the body natural and the body politic conveyed at least legal immortality on every incarnation of the king. While the soul passed from the body natural, the sovereign essence of the king’s body corporate was eternal.2

When the people reclaimed their sovereignty in the Glorious Revolution, they split asunder the king’s two bodies, taking for themselves the body politic, and leaving behind the king’s body natural, at most. The body corporate was no more, as the body politic was no longer contained by any one body natural.

And yet, the creation of the “right of publicity” in the 20th century imposed a mimetic duality on celebrities, by refashioning them as the union of two “bodies”: a person and an identity. The right of publicity grew out of the “right to privacy,” which confers an inalienable “right to be let alone.”3 The right to privacy enables people to prohibit the use of their name and likeness under certain circumstances, by creating a cause of action for invasion of privacy. But it is a personal right, not a property right, because it cannot be transferred, and terminates at death.4 By contrast, the right of publicity is a property right, because it confers an alienable right to prohibit the commercial use of a person’s name and likeness under certain circumstances.5

Of course, in the absence of celebrity, the right of publicity is but a peppercorn, and as readily discarded; but in the presence of celebrity, it is a philosopher’s stone, and coveted accordingly. It transmogrifies the person become celebrity into a “body corporate” consisting of a tangible, mortal person and an intangible, immortal identity. Unlike the personal right of privacy, which only empowers a person to avoid the public eye, the property right of publicity empowers a celebrity to shape public discourse.6 Where the right of privacy enabled a person to demand silence, the right of publicity empowers celebrities to control speech about themselves and to delegate that power to others. The 13th Amendment provides that living persons are inalienable.7 And federal law also prohibits the sale of a corpse and its constituent parts.8 But the right of publicity encourages celebrities to sell their identities by making them alienable, at least in part.9 The celebrity identity protected by the right of publicity may pass from one person to another, and survive them all, enduring until the kingdom in which it reigns has come to naught.

Just as medieval political theology conceptualized the king’s body corporate as the union of a body natural and the body politic, so too does the right of publicity conceptualize the celebrity body corporate as the union of a person and a celebrity identity. Just as the body politic survived the demise of the king’s body natural, passing from one person to another, so too may the celebrity identity survive the death of its original vessel, passing either to a new owner in the form of a property right, or to its former subjects, the fans who collectively conjured it from the ether of popular culture.10 Just as the body politic cured any defect in the body natural, so too does the celebrity identity transform the person into an icon, perfect even in its imperfection.11 Just as the body politic empowered the king’s body corporate to exercise and delegate the sovereign power of the state, so too does the celebrity identity empower the celebrity to exercise and delegate the mysterious power of fame.

The origin of the king’s body corporate lay in the gradual secularization of theology, which transmogrified power into right and created the medieval concept of sovereignty. But what was the origin of the right to privacy and how did it beget the right of publicity? How did the right of publicity create the celebrity body corporate and how did celebrities come to claim that power for their own? The story begins with two ingenious law professors, continues with an especially cussed baseball player, and comes to fruition in a dispute between competing baseball card manufacturers. In short, it is a story about how baseball cards transformed celebrity.

 

Brooklyn Atlantics baseball card, circa 1860. From the internet.

 

The Creation of the Right to Privacy
Legendarily, the right to privacy was created from whole cloth by one of the most influential law review articles ever written.12 In 1890, Samuel Warren and Louis Brandeis published an article titled “The Right to Privacy” in the Harvard Law Review.13 At the time, the common law recognized causes of action in tort for slander and libel, or the dissemination of false statements that harm a person’s reputation.14 But Warren and Brandeis observed that true statements can also cause harm when they improperly intrude into a person’s private life, and argued that the common law should recognize a cause of action in tort for invasion of privacy in order to prevent those harms.15 They characterized the “right to privacy” as “the right to be let alone,” and explained:

The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever; their position or station, from having matters which they may properly prefer to keep private, made public against their will. It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as possible, prevented.16

In fact, Warren and Brandeis did not invent the concept of a “right to privacy,” or even coin the phrase, but they did show how it was consistent with a smorgasbord of existing common law doctrines.17 In 1905, the Georgia Supreme Court became the first state supreme court to recognize a common law right to privacy, and many others soon followed.18 And where it was not recognized as a common law right, state legislatures often created a statutory right.

For example, in 1902, an 18-year-old girl named Abigail M. Roberson sued the Rochester Folding Box Co. and the Franklin Mills Co. for using a photolithograph of her to advertise Franklin Mills Flour.19 The New York Court of Appeals dismissed the lawsuit, holding that the common law did not create a “right of privacy,” but observing that the legislature “could very well interfere and arbitrarily provide that no one should be permitted for his own selfish purpose to use the picture or the name of another for advertising purposes without his consent.”20 In response, the New York Legislature enacted the New York Privacy Law of 1903, which provided that the commercial use of a person’s name or likeness without their written consent was both a misdemeanor and a tort.21

However, some courts held that the common law right to privacy only prohibits the improper public disclosure of private facts, and therefore does not necessarily prohibit the commercial use of a person’s name or likeness without permission.22 And most courts held that the right to privacy is an inalienable personal right, not an alienable property right.23 While people could waive the right to privacy by contract, they could not transfer the right itself. Consequently the recognition of the right to privacy provided only a qualified right to control the use of a person’s name and likeness, and limited the ability of celebrities to capitalize their identities.

 

Gilbert & Bacon cabinet card photo of Deacon McGuire of the Philadelphia Quakers, circa 1885-88. From New York Public Library Digital Collections.

 

A Potted History of Baseball Cards
Baseball originated in English bat-and-ball games dating from time immemorial. The first known reference to “base-ball” appeared in 1744, but the term referred to a congeries of bat-and-ball games until the mid-19th century. In 1845, Alexander Cartwright of New York’s Knickerbocker Club created modern baseball by codifying the “Knickerbocker Rules,” and within a decade baseball became the most popular sport in America.24

Proto-baseball cards appeared soon afterward, in the form of “cartes de visite,” or small photographs mounted on cardboard. Cartes de visite were invented in 1854, and became wildly popular in the United States during the Civil War because they provided an inexpensive way for soldiers and their families to exchange photographs. But photographers also sold commercial cartes de visite featuring assorted celebrities, including politicians, authors, and baseball players.

In the late-17th century, businesses began using “trade cards,” or cardstock with an image printed on one side and information printed on the other, to advertise their products and services. In the late-1860s, as baseball became professionalized, businesses began using images of baseball players and teams on trade cards.

In the early-1870s, tobacco companies started using cardstock to stiffen paper cigarette packages. At first, “cigarette cards” were blank, but in 1875, the Allen & Ginter tobacco company of Richmond, Virginia started using trade cards, so they could do double duty as advertisements. Among other things, Allen & Ginter’s cigarette cards featured images of baseball players, making them the first true baseball cards. They were popular, and other cigarette companies soon started using baseball cards. In 1888, the G&B Chewing Gum Company of New York included baseball cards in its packages of gum, and other candy manufacturers sporadically followed suit.

These early baseball cards predated the right to privacy, so baseball players could not control the use of their names and likenesses. But as courts and legislatures increasingly began to recognize the right to privacy, companies began to ask permission from players to use their names and likenesses.

For example, between 1909 and 1911, the American Tobacco Company (“ATC”) of Durham, North Carolina issued the so-called “T206” series of cigarette cards featuring 524 different baseball-related subjects, primarily portraits of players.25 ATC hired an assortment of sports journalists in different cities to offer baseball players $10 for permission to use their names and likenesses on its cards. While the state Supreme Court did not explicitly recognize a right to privacy until 1938, ATC distributed its cigarettes nationally, and presumably sought permission in order to avoid liability for violation of the right to privacy in other states, including New York.26

 

T206 PSA 5 (MC) Honus Wagner baseball card, 1909. From the internet.

 

At some point, Pittsburgh Pirates shortstop Johannes Peter “Honus” Wagner either refused or rescinded his permission to use his name and likeness on a cigarette card, and returned his $10 fee to ATC, because he “did not care to have his picture in a package of cigarettes.”27 While ATC immediately stopped issuing Wagner cards, it had already released about 200. Because of Wagner’s belated withdrawal of permission to use his name and likeness, the T206 Honus Wagner card is quite rare, and is currently the most valuable baseball card.28

After the First World War, tobacco companies gradually stopped issuing cigarette cards, but gum and candy manufacturers continued to issue occasional sets of baseball cards. In 1933, five bubblegum companies issued sets of varying sizes, the largest being a 239-card set issued by Goudey Gum of Boston. Goudey briefly dominated the baseball card business, but its sales gradually declined, and Gum, Inc. of Philadelphia dominated the market from 1939 to 1941.

During the Second World War, baseball card production stopped due to wartime rationing of cardboard. But after the war, the popularity of baseball skyrocketed, and in 1948, the Bowman Gum Company (formerly Gum, Inc.) and the Leaf Gum Company of Chicago resumed producing baseball cards.

Bowman signed 106 baseball players to exclusive contracts and issued a set of 48 black and white baseball cards. In exchange for “the ‘exclusive right to print, publish, exhibit, display and sell’ the ballplayer’s photograph together with his name, signature or facsimile thereof” in connection with the sale of chewing gum, the player received $10, plus an additional $90 “if he was a member of a major league baseball club for the first 31 days after the opening of the official baseball season.”29

By contrast, Leaf signed baseball players to nonexclusive contracts, and issued a set of 98 color baseball cards. At least 24 of the cards in the Leaf set depicted players who had exclusive contracts with Bowman. Bowman sued Leaf for interfering with its exclusive contracts, and they quickly settled, with Leaf agreeing not to issue any baseball cards until 1951.30

As Bowman continued to sign more baseball players to exclusive contracts and started issuing larger sets of baseball cards, its profits quickly increased.31 And competitors took notice. In 1951, the Topps Chewing Gum Company of Brooklyn entered the baseball card business, signing contracts with baseball players and issuing a 104-card set packaged with a caramel candy. In response, Bowman signed its baseball players to new exclusive contracts that covered both chewing gum and “confections.”

 

1952 Topps Jackie Robinson (#312) baseball card. From the internet.

 

The Creation of the Right of Publicity
In 1952, Bowman was purchased by Haelan Laboratories, Inc., and Topps issued a set of 407 baseball cards, packaged with chewing gum. Hundreds of the players depicted in the set had signed exclusive contracts with Haelan. So Haelan sued Topps in the United States District Court for the Eastern District of New York, alleging unfair competition, trademark infringement, and interference with contractual relations. Topps responded that Haelan failed to state a claim because under New York law the “statutory right of privacy is personal, not assignable.”32 In other words, Topps argued that the baseball players could waive their right to privacy, but could not assign it in an exclusive contract. The district court agreed with Topps and dismissed the complaint, and Haelan appealed.

The Second Circuit reversed, holding that Haelan’s exclusive contracts provided not only a release from liability for invasion of the right of privacy, but also a promise not to provide a such a release to third parties, and that Topps interfered with those contracts by inducing baseball players to breach their promise.33 But it also held that celebrities possess an assignable “right of publicity”:

We think that, in addition to and independent of that right of privacy (which in New York derives from statute), 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, and that such a grant may validly be made ‘in gross,’ i.e., without an accompanying transfer of a business or of anything else. Whether it be labelled a ‘property’ right is immaterial; for here, as often elsewhere, the tag ‘property’ simply symbolizes the fact that courts enforce a claim which has pecuniary worth.

This right might be called a ‘right of publicity.’ For it is common knowledge that many prominent persons (especially actors and ball-players), 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.34

As a result, the Second Circuit effectively created a new kind of intellectual property, the “right of publicity,” which gives people an alienable right in the commercial use of their name and likeness.35 After Haelan, not only could people prevent the commercial use of their name and likeness without permission, but also they could transfer the right to control the commercial use of their name and likeness to someone else.36

Ironically, Haelan was a pyrrhic victory. The Second Circuit remanded the case to the district court, where it became clear that Haelan had failed to sign exclusive contracts with enough players to monopolize the baseball card business, and had bungled the renewal of many of its contracts.37 As a consequence, both Haelan and Topps continued to issue baseball cards until January 20, 1956, when Topps bought Haelan’s baseball card and bubble gum business for $200,000, and became the dominant manufacturer of baseball cards.


The Baseball Card Monopoly
But Topps wasn’t satisfied with dominance, it wanted a monopoly. After purchasing Haelan, it signed exclusive contracts with as many major and minor league baseball players as possible, and focused on signing minor league players before they made the majors. The Topps form contract “guaranteed the player a lump-sum payment of $125 for each season in which either his picture was used or the player was an active member of a major league club” and “ran until Topps had made five years of payments to the individual player.”38 Within a few years, they had signed exclusive contracts with almost every professional ballplayer.

In 1965, the Federal Trade Commission filed an antitrust action against Topps, alleging that it had monopolized the baseball card business by forming exclusive contracts with about 414 of 421 major league baseball players, and “practically all minor league players having a major league potential.”39 While the hearing examiner ruled against Topps, the Commission reversed, primarily because the Topps contracts were limited to baseball cards sold alone or in connection with gum and candy, so competitors could sell baseball cards in connection with other products. But the Commission also observed that the FTC could not interfere with the ability of baseball players to alienate their right of publicity.40 After the FTC decision, Topps bought out Fleer, its only remaining competitor, and consolidated its control of the baseball card business.41

In 1966, the Major League Baseball Players Association hired Marvin Miller as its Executive Director. Miller created a group licensing program, under which players authorized the Players Association to negotiate group licenses of their right of publicity, but retained the right to negotiate individual licenses. It avoided conflict with Topps’ exclusive contracts by explicitly excluding publicity rights that players had already conveyed. As a consequence, the Players Association could not negotiate group licenses for baseball cards sold alone, or in connection with gum or candy. The first group license authorized Coca-Cola to put pictures of baseball players on the underside of bottlecaps. It was quite successful, and the Players Association soon negotiated group licenses with many other companies.42

The Players Association also focused on increasing compensation under Topps’s exclusive contracts with individual baseball players. Miller persuaded players not to renew their exclusive contracts with Topps, which eventually enabled him to renegotiate the terms of Topps’s contracts. On November 18, 1968, Topps formed a new agreement with the Players Association that “increased the players' lump sum license payments from $125 to $250 per year” and provided each player “a pro rata share of 8% of Topps' sales up to four million dollars and 10% of Topps' sales over four million.”43

In 1974, Fleer decided to re-enter the baseball card business, but quickly ran afoul of Topps and the Players Association. Fleer tried to obtain a group license to sell large (5” x 7”) patches and cards, but after consulting with Topps, the Players Association refused. Fleer responded by filing an antitrust action against Topps and the Players Association in the United States District Court for the Eastern District of Pennsylvania.44

The district court found that Topps and the Players Association had conspired to monopolize the baseball card business. It observed that Fleer effectively could not obtain individual licenses to sell baseball cards alone or with gum or candy, because Topps had exclusive contracts with substantially all professional baseball players, and that it could not obtain a group license to sell baseball cards with other products, because the Players Association refused to negotiate one. As a result, Topps and the Players Association exercised monopoly power over the baseball card business. The district court awarded only nominal damages to Fleer, but enjoined Topps from forming or enforcing exclusive contracts with baseball players, and ordered the Players Association to grant at least one group license to sell baseball cards.45

Pursuant to the district court’s order, the Players Association granted Fleer a non-exclusive group license to sell baseball cards, which Fleer immediately used.46 Both Topps and Fleer appealed to the United States Court of Appeals for the Third Circuit. Topps appealed the judgment, and Fleer sought an expanded injunction banning Topps from the baseball card business for one year and forcing Topps to obtain group licenses through the Players Association, rather than exclusive contracts with individual baseball players. The Third Circuit reversed the district court, holding that neither Topps’ exclusive contracts nor the Players Association’s group licenses were unreasonable restraints of trade, and that Fleer had failed to prove that Topps and the Players Association actually exercised monopoly power, because competitors could negotiate their own exclusive contracts with individual baseball players.47

 

An autographed 1969 Topps Sporting News All Star Curt Flood (#426) baseball card. From the internet.

 

The Rise and Demise of the Reserve Clause
The Players Association not only helped baseball players claim a larger percentage of the value of their right of publicity, but also helped them claim a larger percentage of the value of their labor. The first labor union representing baseball players was the Brotherhood of Professional Base Ball Players, formed in 1885. It was followed by the Players’ Protective Association in 1900, the Fraternity of Professional Baseball Players of America in 1912 and the American Baseball Guild in 1946. The prime target of those unions was the hated “reserve clause,” a part of every player’s contract that gave the team a unilateral option to renegotiate and assign the contract. Any player who breached the reserve clause was blacklisted. As a consequence, players were bound to their team, unless they obtained an unconditional release.48

The reserve clause originated in an 1879 agreement among the National League teams, and it was soon a standard feature of a baseball player’s contract in all the leagues. The owners loved it, because it reduced the cost of operating a successful baseball team by reducing player salaries. Unsurprisingly, baseball players objected from the get-go, because it reduced not only their salaries, but also their freedom. In 1887, baseball player cum lawyer John Montgomery Ward of the New York Giants published a widely-read article comparing the reserve clause to chattel slavery: “Like a fugitive-slave law, the reserve-rule denies him a harbor or a livelihood, and carries him back, bound and shackled, to the club from which he attempted to escape.”49

Between 1890 and 1914, the enforceability of the reserve clause was tested in a series of breach of contract actions filed by baseball teams against errant players who defected to competing leagues. Typically, the players won, as courts held that the common law neither obligated teams to hire players, nor obligated players to stay with their teams, absent defined contractual terms. But the reserve clause persisted, as the competing leagues failed and teams knew that players lacked options.50

The alternative was to challenge the reserve clause on antitrust grounds. But the Supreme Court repeatedly rejected those challenges, on increasingly implausible grounds. In 1915, the owner of the Baltimore Terrapins filed an antitrust action against the National League and American League, alleging that they violated the Sherman Antitrust Act by conspiring to destroy the former Federal League, but the Court held that professional baseball was exempt from federal regulation under the Sherman Act because it was not “interstate commerce.”51 In 1950, George Earl Toolson filed an antitrust action against the New York Yankees, alleging that the reserve clause was an improper restraint of trade under the Sherman Act, but the Court reaffirmed its holding that professional baseball was exempt from the Sherman Act, essentially because the leagues had reasonably relied on its previous ruling.52 And in 1970, Curtis Charles Flood filed an antitrust action against Major League Baseball Commissioner Bowie Kuhn, alleging that the reserve clause violated the Sherman Act and comparing it to slavery. While the Court finally acknowledged that professional baseball was indeed interstate commerce, it nevertheless held that baseball was exempt from federal regulation under the Sherman Act, based on precedent.53

But the reserve clause was already on its way out. In 1968, the Players Association had negotiated the first-ever collective bargaining agreement in professional sports, which increased the minimum salary from $6,000 to $10,000, among other things. In 1970, it negotiated the right for players to arbitrate grievances. In 1972, the players went on strike and forced the owners to accept binding arbitration. And in 1975, Dave McNally and Andy Messersmith challenged the perpetual reserve clause in binding arbitration and prevailed. When the arbitrator’s decision was affirmed by the federal courts, the reserve clause was no more.54 While baseball retained its unique antitrust exemption, players could become free agents and negotiate their salaries.


The Athlete’s Two Bodies
Medieval political theorists unwittingly enabled the creation of the modern concept of sovereignty by defining the king as the union of two bodies. If the body politic could pass from one body natural to another, it could also pass to the body corporate constituted by the people as a whole.

Likewise, Warren and Brandeis unwittingly enabled the creation of the modern concept of celebrity by creating the right to privacy, which implicitly recognized the existence of an intangible identity in every tangible person. And the creation of the right of publicity in Haelan realized that concept by implicitly defining a celebrity as the union of two bodies: a tangible and mortal person, and an intangible and immortal celebrity identity.

Just as the king’s body politic could pass from one body natural to another, so too could the celebrity’s persona pass from one person to another. And just as sovereignty went from being the property of the king to the property of the nation, so too did celebrity go from being a personal right to a property right. While not every element of celebrity identity is alienable, many of them are, and more often than not, property will become public.55

Initially, professional baseball players were deprived of both of their bodies. They lost their persons to the reserve clause, and their personalities to the right of publicity. But through collective action, they eventually reclaimed both. And yet, their bodies remain bifurcated, their personalities long outliving their persons. Indeed, Honus Wagner’s fame lives on, 60 years after his death.


Conclusion
Courts created the right of publicity to enable athletes to sell their personalities, holding that baseball players could convey an exclusive right to use their name and likeness on a baseball card. In theory, the right of publicity enabled athletes whose capital consisted of their bodies to capitalize their celebrity. But in practice, at least for a time, it allowed sporting leagues to hire people, but sell their identities.

Baseball cards transformed the athletes who performed the ritualized labor of the game into secular icons. And the right of publicity enabled companies to capitalize their identities, even as the league capitalized their bodies. Eventually, baseball players reclaimed both their bodies and their identities. But the conceptual duality of the celebrity corporate body persists.



ACKNOWLEDGMENTS

Thanks to Daniel Sherer for inspiring and informing the development of this article, and to Katrina M. Dixon, Jennifer E. Rothman, Jeffrey Levine, and Christopher Bradley for helpful comments and suggestions. Thanks to Michel Yang, Tina Brooks, and Franklin Runge for invaluable research assistance.

NOTES

1. See generally Ernst H. Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton, NJ: Princeton University Press, 1957).

2. See Kantorowicz, The King’s Two Bodies, 3-23.

3. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).

4. Melville B. Nimmer, The Right of Publicity, 19 Law & Contemp. Probs. 203, 209 (1954) (“In most jurisdictions it is well established that a right of privacy is a personal right rather than a property right and consequently is not assignable.”).

5. See 2 J. Thomas McCarthy, The Rights of Publicity and Privacy § 10:13 (2d ed. 2011) (stating that the “rule of free assignability in gross of the right of publicity has never been seriously questioned”) and Restatement (Third) of Unfair Competition § 46 cmt. g (1995) (stating that “[t]he interest in the commercial value of a person's identity ... is freely assignable to others”). But see generally Jennifer E. Rothman, The Inalienable Right of Publicity, 101 Geo. L.J. 185 (2012) (arguing that “the alienability of the right of publicity is far from universal and is limited in a number of significant ways”).

6. Melville B. Nimmer, The Right of Publicity, 19 Law and Contemporary Problems 203, 204 (1954) (“Indeed, privacy is the one thing they do ‘not want, or need.’ Their concern is rather with publicity, which may be regarded as the reverse side of the coin of privacy.”).

7. U.S. Const. Amend. 13 (“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”).

8. 42 U.S.C. § 274e(a) (“It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.”).

9. See, e.g., Melville B. Nimmer, The Right of Publicity, 19 Law and Contemporary Problems 203, 213 (1954) (“The pecuniary worth of publicity values will be greatly diminished if not totally destroyed if these values cannot be effectively sold.”); but see Jennifer E. Rothman, The Inalienable Right of Publicity, 101 Geo. L.J. 185, 186 (2012) (arguing that “the alienability of the right of publicity is far from universal and is limited in a number of significant ways”).

10. See generally Jennifer E. Rothman, Rothman’s Roadmap to the Right of Publicity, at http://www.rightofpublicityroadmap.com (observing that some states have created a post-mortem right of publicity and others have not).

11. See, e.g., Greil Marcus, Dead Elvis: A Chronicle of a Cultural Obsession (Cambridge, MA: Harvard University Press, 1999).

12. See, e.g., Melville B. Nimmer, The Right of Publicity, 19 Law and Contemporary Problems 203, 213 (1954) (“Louis Brandeis and Samuel Warren in their essay ‘The Right to Privacy’ produced what is perhaps the most famous and certainly the most influential law review article ever written.”). In fact, the concept of a right to privacy predated the article, but, “When the legend becomes fact, print the legend” (The Man Who Shot Liberty Valance [1962]).

13. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 205, 207, 211 (1890).

14. The tort of slander applies to oral statements and the tort of libel applies to written statements. See, e.g., Pollard v. Lyon, 91 U.S. 225, 228 (1875) (“[T]here is a marked distinction between slander and libel, and that many things are actionable when written or printed and published which would not be actionable if merely spoken, without averring and proving special damage.”).

15. Interestingly, Charles Colman has recently suggested that the impetus for the article was Samuel Warren’s concern for protecting the privacy of his gay younger brother Edward “Ned” Warren. Charles E. Colman, About Ned, 129 Harv. L. Rev. F. 128 (2016).

16. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 214–15 (1890).

17. Dorothy J. Glancy, The Invention of the Right to Privacy, 21 Ariz. L. Rev. 1, 2-3 (1979).

18. See, e.g., Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905).

19. Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 545 (1902).

20. Ibid.

21. 1903 N.Y. Laws 308 (codified at N.Y. Civ. Rights Law §§ 50, 51 (2016)).

22. See Melville B. Nimmer, The Right of Publicity, 19 Law and Contemporary Problems 203, 204-06 (1954).

23. See Melville B. Nimmer, The Right of Publicity, 19 Law and Contemporary Problems 203, 209-10 (1954) (citing O'Brien v. Pabst Sales, 124 F.2d 167 (5th Cir. 1941), among other cases). But see Jennifer E. Rothman, The Inalienable Right of Publicity, 101 Geo. L.J. 185 (2012) (“Privacy rights themselves also originated from a property-based rubric.”).

24. See generally Francis C. Richter, Richter’s History and Records of Base Ball: The American Nation’s Chief Sport (Philadelphia: F.C. Richter, 1914). Cf. The Common Law Origins of the Infield Fly Rule, 123 U. Pa. L. Rev. 1474 (1975).

25. The series was named “T206” in 1939 by baseball card collector Jefferson Burdick. See Scot A. Reader, “Inside T206: A Collector’s Guide to the Classic Baseball Card Set,” at http://www.oldcardboard.com/t/t206/insidet206-centennial-edition.pdf

26. Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55, 64 (1938).

27. Ralph S. Davis, “Wagner a Wonder: One Player in Game Who is Not Money Mad,” The Sporting News, October 12, 1912. It is unclear whether Wagner refused his permission to use his name and likeness because he disapproved of cigarettes or because he wanted a larger fee. While Wagner had previously appeared in other tobacco advertisements, including a 1909 cigarette advertisement, one of his teammates claimed that he would not license his name and likeness to cigarette companies:

“Wagner’s only bad habit is his love of chewing tobacco, but he detests cigarettes, and does not smoke in any form. I have seen him refuse several checks of $1000 by cigarette companies who want to use his name.”

From San Jose Mercury News, October 22, 1914. See Michael O'Keeffe & Teri Thompson, The Card: Collectors, Con Men, and the True Story of History's Most Desired Baseball Card (New York: HarperCollins, 2007), 32-39; and Reader, “Inside T206.”

28. In 2007, a collector paid $2.6 million for a T206 Honus Wagner cigarette card. See generally O’Keeffe & Thompson, The Card.

29. Matter of Topps Chewing Gum, Inc., 67 F.T.C. 744 (1965).

30. Ibid.

31. Bowman issued a 240-card set in 1949, a 252-card set in 1950, and a 324-card set in 1951, reaching almost $1 million in revenue.

32. Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 867 (2d Cir. 1953). See generally J. Gordon Hylton, Baseball Cards and the Birth of the Right of Publicity: The Curious Case of Haelan Laboratories v. Topps Chewing Gum, 12 Marq. Sports L. Rev. 273 (2001).

33. Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 867 (2d Cir. 1953).

34. Ibid., 866, 868.

35. Of course, as Jennifer Rothman has observed, the right of publicity created by Haelan redounded to the benefit of the baseball card publishers, not the baseball players:

“Despite the court's claim to the contrary, Haelan's lawsuit against Topps had little to do with protecting the ballplayers' interests. Instead, the court protected Haelan's corporate interests, not those of the players. Under the logic of Haelan, Haelan was given power not only over the competing company, but also against the players. Now that the right of publicity had been converted from a personal interest to a property right, it could be transferred from the players to Haelan. Although preventing a baseball player from appearing on other baseball cards may appear minor, especially if one operates on a purely economic plane, there is a significant dignitary harm from having a third-party publicity-holder wield the power to stop an identity-holder from choosing how and when to publicly exhibit himself or images of himself.”

From Jennifer E. Rothman, The Inalienable Right of Publicity, 101 Geo. L.J. 185 (2012).

36. The Supreme Court eventually ratified the Second Circuit’s recognition of the right of publicity in Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977), holding that the First Amendment did not preclude Hugo Zacchini’s right of publicity action against a television station that broadcast his entire “human cannonball” act without permission.

37. Haelan Labs. Inc v. Topps Chewing Gum Co, 112 F. Supp. 904 (E.D.N.Y. 1953). Specifically, Haelan inadvertently terminated many contracts by revising them to cover both gum and confections, thereby enabling Topps to establish priority.

38. Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139, 142 (3d Cir. 1981).

39. Matter of Topps Chewing Gum, Inc., 67 F.T.C. 744 (1965).

40. Ibid.

41. Topps paid $395,000 for all of Fleer’s contracts with baseball players. Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139, 142 (3d Cir. 1981).

42. Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139, 143 (3d Cir. 1981).

43. Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139, 144 (3d Cir. 1981).

44. Fleer Corp. v. Topps Chewing Gum, Inc., 501 F. Supp. 485 (E.D. Pa. 1980), rev'd, 658 F.2d 139 (3d Cir. 1981).

45. Ibid.

46. Fleer Corp. v. Topps Chewing Gum, Inc., 539 A.2d 1060, 1061 (Del. 1988).

47. Fleer Corp. v. Topps Chewing Gum, Inc., 658 F.2d 139, 146 (3d Cir. 1981). Topps filed an unjust enrichment action against Fleer in Delaware state court, seeking Fleer’s net profits from the sale of baseball cards under the district court’s order, and eventually prevailed. Fleer Corp. v. Topps Chewing Gum, Inc., 539 A.2d 1060, 1062 (Del. 1988).

48. See generally Richard B. Blackwell, Baseball's Antitrust Exemption and the Reserve System: Reappraisal of an Anachronism, 12 Wm. & Mary L. Rev. 859 (1971).

49. Stuart Banner, The Baseball Trust: A History of Baseball’s Antitrust Exemption (New York: Oxford University Press, 2013), 4-5 (citing John Montgomery Ward, “Is the Base-Ball Player a Chattel?,” Lippincott’s Magazine [August 1887]).

50. Ibid., 11-13.

51. Federal Baseball Club of Baltimore, Inc. v. National League, 259 U.S. 200 (1922). See also the Sherman Antitrust Act, 26 Stat. 209 (1890).

52. Toolson v. New York Yankees, 346 U.S. 356 (1953).

53. Flood v. Kuhn, 407 U.S. 258 (1972). Justice Blackmun’s majority opinion in Flood is notorious not only for its unconvincing rationale, but also for its seven-page paean to the history of baseball.

54. Kansas City Royals Baseball Corp. v. Major League Baseball Players Ass'n, 409 F. Supp. 233, 261 (W.D. Mo. 1976) aff'd, 532 F.2d 615 (8th Cir. 1976).

55. But see Jennifer E. Rothman, The Inalienable Right of Publicity, 101 Geo. L.J. 185, 186 (2012). While Rothman correctly observes that some elements of a celebrity identity are not alienable, many elements are alienable, and that alienability necessarily creates a bifurcated “celebrity corporate body.”


 

 

 



ABOUT THE AUTHOR
Brian L. Frye is the Spears-Gilbert Associate Professor of Law at the University of Kentucky College of Law. His scholarship focuses on intellectual property, nonprofit organizations, art law, and legal history, among other things. He is also a filmmaker and film programmer.


 

 

INCITE Journal of Experimental Media
Sports


 

 

 

 

 

 

 


 

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