NY law, ATC contracts, Harry Porter and the time the ATC got sued over sports cards

[G1911]

Following up from the Horizontal Showcase thread on a footnote in hobby history. It does tie back to baseball, but if discussion of this evidence is considered too far removed from direct baseball, delete this. The Porter case had a tiny footnote reference in Inside T206 and has been previously discussed on the boxing board in the T220 Silver Uncut thread.

New York State required the permission of living persons to use their name or image for advertising. The lithographers appear to have been diligent about following this law, though if they had to do this for people who were not living or employed in the state of New York appears to have been a little unclear at the time and to me today.

There are 2 surviving records of how permission was acquired (none of a non-sports figure in the ATC 1909-1912 card project seem to be known), a letter to Highlander Neal Ball and a letter/contract to Dick Hyland, a pugilist.

The Ball letter directly references tobacco and what his image is to be used for, written by a journalist on behalf of the makers. There is a considerable body of evidence that has surfaced over the last few years that the ATC had little input into the cards, production, and subjects and that this was mostly or all the work of the lithographers themselves, at multiple companies that may or may not all be hidden subsidiaries of American Lithographic Co, the major lithography business in the US that was owned by a friend of Duke (who may well have been an initial investor). The Hyland contract that became known only recently (for his T225 card, and subsequently his T218 card) is directly from the lithographers, the project manager of many of the T card sets who worked for Brett Lithography and had long standing relationships with the tobacco monopoly and numerous other lithography firms. Hyland's contract makes no mention of tobacco whatsoever, indicating some signatories may well not have known their image was going to be used to advertise tobacco.

Many stories of cards being pulled due to legal conflicts have floated around the hobby. Wagner, Plank and more included. But only one, as far as the documentary record records, ever actually sued over cigarette cards. Thee are some period articles covering Wagner’s claims, but they do not address the other side of that debate. All claims to cards being pulled for this reason are opinions, and not known facts with primary evidence to substantiate them.

Harry Porter was a member of the Irish-American Athletic Club, many of whose members were featured in T218, a 3 series (possibly 4-5, it is not clear that T220 was intended to be a separate set of cards and not a series of this issue) issue of athletes. This set was almost certainly managed by Frank Fullgraff, the man who handled T220 and T225 among others, and wrote Hyland. Series 1 features swimmers, track stars and pugilists. The cards were produced sometime after February 7, 1910 and probably before July 4, 1910 from the back texts. They began distribution in mid-1910 according to the ledger.

Porter sued the American Tobacco Company (not the lithographers, interestingly) for the unauthorized use of his image in late September, 1910.

Pages 871-873 here contain a record of the case: https://www.google.com/books/edition...sec=frontcover. The focus is on a procedural manner in November of 1910 but contains some interesting references to the cards and the real issue.

The case (Porter v. American Tobacco Co.,125 N. Y. S. 710) is referenced as precedent in several later decisions in the 1930's. All later references in the ensuing decades seem to be to this motion that Porter won, though this part of the suit does not address the larger issue on which the legal use of his image hinges - did Porter give actually his consent to American Tobacco, or not? It seems unlikely he did not sign a contract. The ATC’s defense that he did in fact sign a contract and did so on July 5, 1909 would be awfully incredible if they didn’t have a release at all, but the Hyland contract indicates that many of these pictured subjects may well not have known it was for the purpose of tobacco advertising that their picture was desired. The case also directly references that the contract was to the American Lithographic Co., though I would think it more likely than not that it was Brett Lithography that printed them.

Porters card was evidently never pulled from production, and had a full print run. He is an obscure name in sport history, usually appearing only on lists of Olympic gold medalists, and his card is almost worthless. You can find a poor copy of his card for $1-$2, $10 or so for a 4-5 grade range copy. But he’s the card that actually did get the ATC sued over image rights.

Attached are the two surviving records of contract rights, and a unique copy of the Porter card that was the one to get the conglomerate into court. This is a blank back (I am aware of 3 blank backs extant from the T218 series, all 3 are different subjects) and handcut version. There are 4 back variations of the proper, completely printed card (Hassan 30, Hassan 649, Mecca 30 and Mecca 649).


I am hopeful more contracts will be found to help us flesh out the full picture and perhaps move beyond deductions and educated guesses in connecting the lithography firms.