Player Consent and Inclusion in T206 [Archive]

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07-02-2008, 09:42 AM

Posted By: J HullI recently came across a very interesting legal case, Porter v. American Tobacco Company (1910), that, for me, shed some light on how and why players were included (or not included) in the T206 and other vintage tobacco issues and also on the famous Neal Ball letter that was once part of Barry Halper's collection. The Ball letter (postmarked 2/19/09) reads: Dear Neil: I am getting up a scheme with the American Lithograph Company to get out a series of nicely colored pictures of "The star ball players of America" which will be put in cigarette boxes like they used to print the pictures of actors and actresses. I have all the photographs but, under a new law they have here, I will have to get your permission to use them. I am sending a slip which I want you to sign so I can go on and finish up the pictures. It would be a great favor to me if you would send this back as soon as you can. Several of the boys have already sent theirs, With best wishes, I am. Your friend, (signed) Bozeman Bulger Evening World In his fine work, Inside T206, Scot Reader notes that there was no federal copyright law that compelled the American Tobacco Company or American Lithograph Company to get permission from players, and he theorizes that ATC could legally have ignored players' refusal to give their consent and included them anyway -- which, in fact, they seem probably to have briefly done with Honus Wagner and Eddie Plank. So it's always been sort of a mystery, to me, what law Bozeman Bulger was referring to. Well, the Porter case closes the loop on that question. <img src="http://jimonym.com/Porter.jpg"> Harry Porter was a famous track and field high-jumper of the era. Above is his T218 card, presumably the center of the controversy in his case. He sued the ATC for allegedly using his likeness without his permission and sought a court order forbidding further production and distribution of his likeness for advertising purposes -- i.e. his T218 card. The New York appellate court's opinion in his case is brief and concerns only a procedural matter related to the pleadings, but it tells the story and, importantly, provides the New York state statute which required ATC and ALC to get permission of ballplayers before they could be included in tobacco card issues. I don't know whether other states had similar laws at the time, but the size and importance of New York state and New York City as markets for ATC cigarettes makes it pretty certain that this one state law regulated the trust's actions nationally. I know Ted Z has proposed (convincingly) that Plank and other Philadelphia and Pittsburgh players may have refused their consent to ATC because of commitments to the American Caramel Company, and we all know the notorious refusal by Hans Wagner to be included. Thought someone else out there might like to know the legal teeth that backed up players who, apparently unlike Porter, did refuse their consent. Jamie Harry F. Porter, Respondent, v. The American Tobacco Company, Appellant. SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 140 A.D. 871; 125 N.Y.S. 710; 1910 N.Y. App. Div. LEXIS 3063 November 18, 1910, Decided Woodward, J.: The plaintiff brings this action to secure a perpetual injunction forbidding the defendant to make use of the plaintiff's name and picture for business purposes, and for damages for such use. The complaint alleges that the defendant "wilfully, knowingly and without the written or oral consent of plaintiff, used the name and picture or portrait of plaintiff, a living person, for advertising purposes and for the purposes of trade in the State of New York and elsewhere, from the year 1909 to the present time and still continues to so use plaintiff's name and picture," and this is the gravamen of the action, though other matters are alleged in support of the claim for damages. The defendant denies the material allegations above quoted, and sets up a separate and distinct defense, "that on or about the 5th day of July, 1909, and prior to the use by this defendant of the name, portrait or picture of the plaintiff for advertising purposes or for the purposes of trade, the plaintiff made, executed and delivered a consent in writing as follows," setting out a written consent without date. The plaintiff did not reply to this alleged defense, and the defendant moved the court for an order directing the plaintiff to reply under the provisions of section 516 of the Code of Civil Procedure. The learned justice before whom the motion was made denied the same, the defendant appealing from such order. Section 516 provides that "where an answer contains new matter, constituting a defence by way of avoidance, the court may, in its discretion, on the defendant's application, direct the plaintiff to reply to the new matter." The matter is one going peculiarly to the discretion of the court which entertains the motion, and, while it is not beyond the power of this court to interfere, we apprehend that a clear case should be presented to warrant this court in overruling an order of this character. In the case now before us the statute which alone gives the right of action, for none existed at common law, provides that "Any person whose name, portrait or picture is used within this State for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the Supreme Court of this State against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof." (Civil Rights Law [Consol. Laws, chap. 6; Laws of 1909, chap. 14], ï¿½ 51.) The action is statutory and the plaintiff must, by pleading and proof, bring the action within the terms and conditions of the statute; he must, therefore, plead and prove that the defendant is making use of his name or picture for advertising or business purposes without having first procured the written consent of the plaintiff to make such use of the same. The plaintiff has no cause of action whatever unless he proves that the defendant is making use of his name or picture for advertising or trade purposes without his written consent; that is an essential part of his cause of action, and it may be questioned whether the alleged written consent of the plaintiff to the American Lithographing Company and its customers is "new matter, constituting a defence by way of avoidance." An "avoidance" in pleading is defined to be the introduction of new or special matter, which, admitting the premises of the opposite party, avoids or repels his conclusions. (3 Am. & Eng. Ency. of Law [2d ed.], 523, and authorities cited in notes.) Here the defendant denies that it has made use of the plaintiff's name or picture without his written consent; it raises an issue as to the facts alleged, and places the burden of establishing the fact upon the plaintiff. Its alleged new matter does not avoid the plaintiff's right to recover; it takes from him his cause of action, and that can all be fully and fairly brought out upon the trial of the issue of whether the defendant has made use of the plaintiff's name or picture without his written consent. The plaintiff must affirmatively prove his case, subject to the defendant's right of cross-examination, and it is difficult to see how any end of justice would be promoted by forcing the plaintiff to reply to matter which does not constitute a defense by way of avoidance, but by way of destroying absolutely the cause of action. The order appealed from should be affirmed. Hirschberg, P. J., Jenks, Thomas and Rich, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.

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07-02-2008, 09:48 AM

Posted By: Mattfascinating read. thanks!

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07-02-2008, 10:14 AM

Posted By: T206Collector....a law review article! Nice job. _ _ _ _ _ _ _ _ Visit <a href="http://www.t206collector.com" target="_new" rel="nofollow">http://www.t206collector.com</a> for signed deadball card galleries, articles and more!

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07-02-2008, 10:26 AM

Posted By: Jason LThank you. This would then apply to the entire set, I suppose, since the T206 cards were all printed in NYC by ATC, -and where the players played would have no bearing on the need for player consent, correct?

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07-02-2008, 10:58 AM

Posted By: brian pThe Ball letter is dated February 1909, while this court decision occurred November 1910. So how is it possible that the new law referenced in the Ball letter can be this court decision? Brian

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07-02-2008, 11:04 AM

Posted By: BrianThanks for sharing Jamie. Great post.

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07-02-2008, 11:21 AM

Posted By: J HullBrian P., true but the citation for the law in the case text dates the law's codification to 1909. Additionally, Ball played for the New York Highlanders and Bulger wrote for the New York Evening World, so when he says "here" it had always struck me that he meant New York. Jason, where the player lived or played wouldn't matter. The law addresses use of a likeness in commerce in New York, so it applied directly to all cards distributed in New York, no matter who was pictured, so long as they were alive. It would be my contention that because card/insert production was so standardized, the ATC wouldn't have one set of procedures and products for New York and another set for the rest of the country. There is of course also the issue that both ATC and ALC were headquartered in NYC and were thus bound to follow the laws of that state.

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07-02-2008, 01:01 PM

Posted By: Ted ZanidakisThis is really great stuff....thanks for your effort in tracking down this case and sharing it with us. Also, thanks for remembering my American Caramel/ATC theory regarding Eddie Plank (and other Pennsylvania players). It's documented evidence like this that I have searched for in Philadelphia to support my Plank theory. We will be visiting Gettysburg this summer; and, I will continue my search in Eddie Plank's home- town to possibly find similar documentation such as you've presented here regarding Harry Porter. Best regards, TED Z

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07-02-2008, 04:08 PM

Posted By: barry arnoldgreat corroborative work, Jamie, as well as an impetus for further research. best, barry

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07-02-2008, 08:11 PM

Posted By: Mark HoltGreat read - thanks for posting this!!

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07-02-2008, 09:00 PM

Posted By: Frank WakefieldAbsolutely a fine post, thank you, Jamie. That written opinion of the trial court in November seems sufficiently contemporary to me, to the Bulger letter. American Tobacco's concern in February could be because Porter's action may well have already been filed, and if not, at least the attorneys would have been exchanging correspondence about it. Porter may not have been the first, but could have been. The 'first' one, whoever it was, might have settled, and word spread so other actions followed. Fantastic stuff, Thanks!!!

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07-04-2008, 05:38 PM

Posted By: Scot Reader Jamie, Great post, as usual. I briefly discussed the statute in the 3rd edition of Inside T206, but was not aware of the court case that you cited. Here is what I had to say based on the information I had in early '06: Bulger’s mention in his letter to Ball of needing Ball’s permission “under a new law they have here” is curious. At first blush, the reference might seem to have been to the Copyright Act of 1909, a major overhaul of federal copyright law that became effective on July 1, 1909 after years of well-publicized debate. However, that law was not likely the object of his remark. The Copyright Act of 1909 did not compel ATC to secure the consent of the ballplayers since the players held no copyright in the images used on the cards. More likely, Bulger’s reference was to the New York Privacy Act of 1903, a statutory scheme enacted by the New York legislature in response to a 1902 court decision. The plaintiff in the lawsuit that spawned the court decision was a little girl who was not a celebrity and who sued the defendants for using her picture to promote the sale of flour without her permission. The New York Court of Appeals held that the little girl had no right at common law to prevent use of her image but observed that the legislature could create a statutory “right to privacy” to prevent such use. The New York Privacy Act of 1903 was enacted in response to the court’s invitation. However, since the right to privacy is essentially a right to be left alone, it is possible that using a famous baseball player’s likeness on a cigarette card would not have been deemed sufficiently invasive to violate it. In short, if ATC had taken an aggressive legal position, it might have continued printing Wagner (Pittsburg) with impunity, in which case the famed card might be as common today as any other Hall of Famer in the first series. Scot

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07-04-2008, 06:55 PM

Posted By: RhysIsnt the 1910 date of the Court case on appeal? If so, when the original Law Suit was filed might be interesting.

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07-04-2008, 09:02 PM

Posted By: Ted ZanidakisJamie, upon having re-read your initial post; and, then culminating with Scot's last two sentences...... "However, since the right to privacy is essentially a right to be left alone, it is possible that using a famous baseball player’s likeness on a cigarette card would not have been deemed sufficiently invasive to violate it. In short, if ATC had taken an aggressive legal position, it might have continued printing Wagner (Pittsburg) with impunity, in which case the famed card might be as common today as any other Hall of Famer in the first series." The conclusion I arrive at, is that the T206 Wagner was not discontinued because Wagner simply told ATC that "he did not want to endorse Cigarette smoking". Hey guys, he was a heavy Cigar smoker all his life. I cannot conceive that a strong-willed James Buchanan Duke (ATC), or Joseph Palmer Knapp (of American Lithographic) responding.... "alright Honus, we are removing your image from our BB card premiums....please, please don't sue us". No, not when Wagner was the most popular BB player of that era......Would Goudey have ever removed their Babe Ruth's......NEVER ! Gentleman, there is more to this story than the Wagner "myth". It took some strong legal action, such as a "cease and desist" order, from another entity to force ATC to remove their T206 Wagner BB card. According to my "Plank theory", that entity was American Caramel Co.(ACC). By virtue of their 1908 sets (E91 and E90-1), ACC had the "1st rights" to a lot of the BB players. Thereby, forcing the removal of the T206 Wagner, Plank, many of the Philadelphia A's, and some of the Pittsburg players from the 1st Series of the T206 set. Daniel Lafean, the founder of ACC, was also a very strong-willed personality. It was his close friendship with Connie Mack that inspired Lafean to include BB card premiums with his caramel candy. TED Z

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07-05-2008, 07:15 AM

Posted By: boxingcardmanUnless the ACC got consents with exclusive rights contracts, there is no basis (standing) to threaten anything against the ATC. Additionally, unless the ACC got consent from the players, it would be just as guilty of breaking the cited law as the ATC. Sic Gorgiamus Allos Subjectatos Nunc