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.

[FrankWakefield]

I found that quite fascinating. Thanks for posting that.

I've bought myself a Porter T218.

[Michael B]

Here are a few photos of Porter from my archives. The captions on both are dated 1909 though one shows him in his Cornell sweatshirt and the other in his 1908 Olympic uniform. He probably graduated from Cornell in 1905 where his best finish was 2nd in the IC4A championships. He won the gold medal in the high jump at the 1908 Olympics in London. He was the #1 ranked high jumper in the world in 1909. One of the captions notes he was a Christian Scientist. Looked at a lot of the cards on ebay and I have original photos of most, if not all, of the Olympic athletes in the set.

Porter-2.jpg

porter-3.jpg

This is a photo of the photo after it was marked with highlight/masking paint. His face looks almost comical. The rag tied on the high bar was a common practice and legal back then. You can also see it under his leg on the card.

[Pat R]

I was going to look into this more after I found this article a few years ago but I still haven't done any further research on it. I believe in New York at least a persons image could have been used without their permission for advertising or trade purposes if it was from a picture that was in the possession of the lithographer or advertising company prior to the 1905 law.

October 30 1908
permission to use pictures Fri__Oct_30__1908_.jpg

[brianp-beme]

Thanks Greg, interesting footnote on Porter and the ATC...to me it seems like he was suing the big guy for the principle of it. The legal side is not the reason why I (or probably any of us) got into our vintage collecting hobby, but still another bit of knowledge that diligent researchers probably enjoyed digging into, and another piece in the puzzle how these companies operated and produced the things we kinda like.

Thanks again Greg for sharing.

Here is regular issue high jumper and ATC shamer Harry, as well as the Mecca that is his Harry backside.

Brian

[toppcat]

Some background here on Fullgraff, ALC and Brett Litho: CLICK

[G1911]

Originally Posted by FrankWakefield

I found that quite fascinating. Thanks for posting that.

I've bought myself a Porter T218.

I'm biased, but it's a great looking card, nice pickup

Originally Posted by Michael B

Here are a few photos of Porter from my archives. The captions on both are dated 1909 though one shows him in his Cornell sweatshirt and the other in his 1908 Olympic uniform. He probably graduated from Cornell in 1905 where his best finish was 2nd in the IC4A championships. He won the gold medal in the high jump at the 1908 Olympics in London. He was the #1 ranked high jumper in the world in 1909. One of the captions notes he was a Christian Scientist. Looked at a lot of the cards on ebay and I have original photos of most, if not all, of the Olympic athletes in the set.

This is a photo of the photo after it was marked with highlight/masking paint. His face looks almost comical. The rag tied on the high bar was a common practice and legal back then. You can also see it under his leg on the card.

Feel free to share more of the T218 source images, please. I am hopeful printing timeframes may be made clearer by source photography. I do not know track and field besides my interest in these cards and the athletes that appear in the set and the closely related E229. Some have copious material I've found, there's not much secondary source material on Porter I've found, just a very brief record of his biggest races, and some primary newspaper articles.

Originally Posted by brianp-beme

Thanks Greg, interesting footnote on Porter and the ATC...to me it seems like he was suing the big guy for the principle of it. The legal side is not the reason why I (or probably any of us) got into our vintage collecting hobby, but still another bit of knowledge that diligent researchers probably enjoyed digging into, and another piece in the puzzle how these companies operated and produced the things we kinda like.

Thanks again Greg for sharing.

Here is regular issue high jumper and ATC shamer Harry, as well as the Mecca that is his Harry backside.

Brian

Why he was suing, I don't know. The records I've found of this case are clearly incomplete, there had to be court events both before and after this hearing on a procedural matter. I have not been able to find a record of them online or in a couple law libraries. I hope someone may eventually find a more detailed record. The suit itself isn't particularly interesting I think, but it may really help solve some card mysteries and better connect the production process from conception to distribution.

Originally Posted by Pat R

I was going to look into this more after I found this article a few years ago but I still haven't done any further research on it. I believe in New York at least a persons image could have been used without their permission for advertising or trade purposes if it was from a picture that was in the possession of the lithographer or advertising company prior to the 1905 law.

I think we dived into this a couple years ago, and as I recall we found other references and within the court decisions that this was the case, there were many other limitations too rather than a very broad blanket right. The courts seemed to have struggled to define many elements of the law and there's much debate in the NY courts for a number of years. Here's the Roberson case: https://casetext.com/case/roberson-v...lding-box-co-1

Many subjects may not have had to sign papers at all. That Hyland did indicates, I think, that the lithographers probably sought consent from most subjects as while Hyland fought in NY plenty, he was a Californian and did not live in NY.

Originally Posted by toppcat

Some background here on Fullgraff, ALC and Brett Litho: CLICK

What we know at present about Fullgraff, the ALC, and Brett is mostly compiled here: https://www.net54baseball.com/showthread.php?t=309276. Page 2 and on is mostly the research and what has so far been found, and deductions that result rather than being about the original topic.

[phlflyer1]

Very informative Greg, thanks for sharing the story and especially the images of the known letters requesting permission for use of the athletes images.

[vintagesportscollector]

Just read this thread, very interesting. Thanks for sharing. Here is a large cabinet of the 1903 Cornell Track Team with Porter (second row, first on the left), his Sophomore year. While solid, he was far from the best athlete on the team. That distinction went to Warren Ellis Schutt (third from right, bottom row). He was the best distance runner in America at the time, and Cornell’s first Rhodes Scholar. He skipped the 1904 Olympics, where he was favored, in order to prepare for Oxford.

1903 Track Team - https://www.iyellcornell.com/copy-of...comp-lqda0szw1

[steve B]

Originally Posted by Pat R

I was going to look into this more after I found this article a few years ago but I still haven't done any further research on it. I believe in New York at least a persons image could have been used without their permission for advertising or trade purposes if it was from a picture that was in the possession of the lithographer or advertising company prior to the 1905 law.

October 30 1908
Attachment 558454

What were the S+H premiums mentioned? Something of their own? Or someone elses product they got a bunch of.

[topcat61]

That was really interesting! I read the Porter suit while researching my article on the T206, and it appears that he lost the case because he took the money ($10) and was later banned from further Olympic participation because it violated the rules of his amature status.

[jimonym]

Those consents are so vaguely worded, no doubt deliberately so. It doesn't appear that Hyland could have known which photo of him was being referred to. Images of Neal Ball appeared in multiple card issues. I wonder if this consent letter was relied upon for all of those usages? I'd guess probably yes. It's a wonder there weren't more lawsuits on this issue.

[G1911]

Originally Posted by jimonym

Those consents are so vaguely worded, no doubt deliberately so. It doesn't appear that Hyland could have known which photo of him was being referred to. Images of Neal Ball appeared in multiple card issues. I wonder if this consent letter was relied upon for all of those usages? I'd guess probably yes. It's a wonder there weren't more lawsuits on this issue.

It seems that the consent letters were used for all of a subjects card appearances related to the producer of the cards. So any of Ball's cards produced by American Lithographic or its shadow subsidiaries and business partners would have piggybacked off the same contract that would have accompanied the surviving letter. There doesn't seem to have been a time constraint in the law at this time that would require them to get a new approval for every new card or anytime they used a different picture.

The incredible vagueness of the Hyland contract helps make the Porter case seem more plausible and possibly explains the Wagner situation testified to in primary sources and other odd pulled cards - If a subject saw a cigarette card of themselves, they might not have any way to realize that that card was connected to a release they signed with a lithography firm identified nowhere on the card and could very reasonably have protested, if there contracts looked like Hyland's. I hope we eventually find more than just the Hyland contract, they might not all have looked like this, but it's the only one that has survived.

Hyland's contract was probably sued for T225-1, T218, C52 and T226 (possible the T224/9 as well). The T225-1 being the first and earliest of them [indeed, the evidence suggests from testimony Fullgraff gave years later in a court proceeding that the card actually began printing 1 month before the release was sent, in a batch of 5,000,000 cards - perhaps a clue to how cards were produced and then pulled but some still issued].