O'BRIEN v. PABST SALES CO., 124 F.2d 167

HUTCHESON, Circuit Judge. Plaintiff, in physique as in prowess as a hurler, a modern David, is a famous football player. Defendant, in bulk, if not in brass and vulnerability, a modern Goliath, is a distributor of Pabst beer. Plaintiff, among other honors received during the year 1938, was picked by Grantland Rice on his Collier’s All American Football Team. Defendant, as a part of its advertising publicity for 1939, following its custom of getting out football

schedule calendars, placed an order with the Inland Lithographing Company, to prepare for and furnish to it, 35,000 Pabst 1939 football calendars. The calendars were to carry complete schedules of all major college games; professional schedules; and pictures of Grantland Rice’s 1938 All American Football Team, the Inland Company to furnish photographs and necessary releases.

At the top of the calendar, as thus printed and circulated, were the words “Pabst Blue Ribbon.” Directly underneath were the words “Football Calendar, 1939”; to the left of these words was a photograph of O’Brien in football uniform characteristically poised for the throw; to the right of them was a glass having on it the words “Pabst Breweries, Blue Ribbon Export' Beer”; and to the fight of the glass still, a bottle of beer, having on it “Pabst Blue Rjbbon Beer.” Directly below these was the intercollegiate football

schedule for 1939, and in the center of the calender were pictures, including that of O’Brien, of Grantland Rice’s All American Football Team for 1938. Near the bottom was the

schedule of the national football league and on the very bottom margin, were the words “Pabst Famous Blue Ribbon Beer.” Claiming that this use of his photograph as part of defendant’s advertising was an invasion of his right of privacy and that he had been damaged thereby, plaintiff brought this suit. The defenses were three.

The first was that if the mere use of one’s picture in truthful and respectable advertising would be an actionable invasion of privacy in the case of a private person, the use here was not, as to plaintiff, such an invasion, for as a result of his activities and prowess in football, his chosen field, and their nationwide and deliberate publicizing with his consent and in his interest, he was no longer, as to them, a private but a public person, and as to their additional publication he had no right of privacy.

The second defense was that plaintiff, in his own interest and that of Texas Christian University, had posed for and had authorized the publicity department of T. C. U. to distribute his picture and biographical data to newspapers, magazines, sports journals and the public generally, and that the particular picture whose use is complained of had been in due course obtained from and payment for it had been made to the T. C. U. publicity department. Third, no injury to appellant’s person, property or reputation had been or could be shown and there was therefore no basis for a recovery.

The testimony fully supported these defenses. It showed that plaintiff, then 23 years old, had been playing football for 14 years, four years of that time with Texas Christian University, and two with the Philadelphia Eagles, a professional football team. During that period he had received many and distinguished trophies and honors as an outstanding player of the game.

He had in fact been the recipient of practically every worthwhile football trophy and recognition, being picked by Grantland Rice on his Collier’s All American Football Team, and by Liberty on their All Players All American Team, and many other so-called All American Football Teams.

Plaintiff testified that he had not given permission to use his picture, indeed had not known of the calendar until some time after its publication and circulation; that he was a member of the Allied Youth of America, the main theme of which was the doing away with alcohol among young people; that he had had opportunities to sell his endorsement for beer and alcoholic beverages and had refused it; and that he was greatly embarrassed and humiliated when he saw the calendar and realized that his face and name was associated with publicity for the sale of beer.

But he did not, nor did anyone for him, testify to a single fact which would show that he had suffered pecuniary damage in any amount. In addition, on cross-examination he testified; that he had repeatedly posed for photographs for use in publicizing himself and the T. C. U. football team; that Mr. Ridings, director of publicity and news service of T. C.

U. without obtaining particular, but with his general, approval and consent, had furnished numberless photographs to various people, periodicals and magazines; and that the pictures of those composing Grantland Rice’s All American Football Team which appeared on the calendar, including his own picture, were first publicized in Collier’s magazine, a magazine of widest circulation. On defendants’ part, it was shown that following the instructions given by the defendant, the calendar company had written to the T. C. U.

Director of publicity for, and obtained from him, the photograph for use in the calendar, paying him $1 therefor, and that the photograph had been used in the belief that the necessary consent to do so had been obtained. The proof that plaintiff had posed for many football pictures for the publicity department of T. C. U. for the purpose of having them widely circulated over the United States was overwhelming and uncontradicted. Mr.

Riding, director of publicity, testified that Davey O’Brien was perhaps the most publicized football player of the year 1938-39; that it was the function of his office to permit and increase the publicity of football players; that his office had furnished some 800 photographs of plaintiff to sports editors, magazines, etc.; that if anybody made a request for a picture of O’Brien he would ordinarily grant the request without asking what they were going to do with it; that the picture in the upper left hand corner of the calendar is a very popular picture of O’Brien and perhaps his most famous pose, and that the publicity department had general authority to furnish plaintiff’s pictures for publicity purposes but had never knowingly furnished any for use in commercial advertising except with O’Brien’s consent and approval..

At the conclusion of this evidence, it being apparent that the picture had been obtained from one having real or apparent authority to furnish it, that no right of privacy of O’Brien’s had been violated by the mere publishing of his picture and that if any actionable wrong had been done him, it must be found in the fact that the publication impliedly declared that O’Brien was endorsing or recommending the use of Pabst beer, plaintiff’s contention centered around this point. The District Judge agreed with defendant that no case had been made out.

He was of the opinion: that considered from the standpoint merely of an invasion of plaintiff’s right of privacy, no case was made out, because plaintiff was an outstanding national football figure and had completely publicized his name and his pictures. He was of the opinion too, that considered from the point of view that the calendar damaged him because it falsely, though only impliedly, represented that plaintiff was a user of, or was commending the use of, Pabst beer, no case was made out because nothing in the calendar or football

schedule could be reasonably so construed; every fact in it was truthfully stated and there was no representation or suggestion of any kind that O’Brien or any of the other football celebrities whose pictures it showed were beer drinkers or were recommending its drinking to others; the business of making and selling beer is a legitimate and eminently respectable business and people of all walks and views in life, without injury to or reflection upon themselves, drink it, and that any association of O’Brien’s picture with a glass of beer could ■not possibly disgrace or reflect upon or cause him damage.

He directed a verdict for defendant. Plaintiff is here urging that the judgment be reversed and the cause remanded for a new trial, first because as a matter of law plaintiff showed damage in that his name was used for the commercial purpose of advertising beer, and second, because there was an issue of fact as to whether the calendar reasonably conveyed to the public the false impression that plaintiff was a user of and was endorsing or recommending the use of beer. We cannot agree with appellant.

We think it perfectly plain that the District Judge was right both in the view he took that nothing in the publication violated plaintiff's right of privacy and that nothing in it could be legitimately or reasonably construed as falsely stating that he used, endorsed, or recommended the use of Pabst’s beer.

Assuming then, what is by no means clear, that an action for right of privacy would lie in Texas at the suit of a private person, we think it clear that the action fails; because plaintiff is not such a person and the publicity he got was only that which he had been constantly seeking and receiving; and because the use of the photograph was by permission, and there were no statements or representations made in connection with it, which were or could be either false, erroneous or damaging to plaintiff.

Nothing in the majority opinion purports to deal with or express an opinion on the matter dealt with in the dissenting opinion, the right of a person to recover on quantum meruit, for the use of his name for advertising purposes. That was not the case pleaded and attempted to be brought. The case was not for the value of plaintiff's name in advertising a product but for damages by way of injury to him in using his name in advertising beer.

Throughout the pleadings, the record and the brief, plaintiff has uniformly taken the position that he is not suing for the reasonable value of his endorsement of beer, on the contrary, the whole burden of his pleading and brief is the repeated asseveration, that he would not and did not endorse beer, and the complaint is that he was damaged by the invasion of his privacy in so using his picture as to create the impression that he was endorsing beer. The judgment was right.

It is affirmed. “Director of Publicity, Texas Christian University, Eort Worth, Texas. “Dear Sir: We would like to secure an 8 x 10 action picture of David O’Brien one showing him throwing a football similar to the one enclosed of Sammy Baugh. This is to be used on our 1939

schedule of football games. “Send invoice with picture and we will remit by return mail. “Thanking you for your cooperation, we remain, “Very truly yours, “B. E. Callahan, “Publisher.”