Player Consent and Inclusion in T206

[Archive]

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