Academic journal article Communications and the Law

Pirone V. Macmillan Inc.: Trying to Protect the Name and Likeness of a Deceased Celebrity under Trademark Law and Right of Publicity

Academic journal article Communications and the Law

Pirone V. Macmillan Inc.: Trying to Protect the Name and Likeness of a Deceased Celebrity under Trademark Law and Right of Publicity

Article excerpt

In recent years, advertisers have sought to use the name and likenesses of deceased celebrities in marketing merchandise. Personalities as diverse as John Wayne, Jackie Gleason, Fred Astaire, and Marilyn Monroe have been featured in ads hawking products ranging from beer, kitchen appliances, vacuum cleaners, and lingerie.

In most cases, the celebrity heirs are paid lucrative fees for the use of the name and likenesses of their illustrious relatives. But in all cases do celebrity relatives have the absolute rights to all depictions of the celebrity? This article analyzes a case in which the heirs of a deceased celebrity, Babe Ruth, were unsuccessful in a claim against a publisher for trademark infringement, unfair competition, and violation of the right of publicity.

Baseball icon Babe Ruth has long been celebrated in books, magazine articles, verse, and in the annals of American common law, as the epitome of baseball excellence. Witness former Justice Harry Blackmun's rhapsodic ode to baseball in general and Ruth in particular in the majority opinion of the landmark decision, Flood v. Kuhn. Blackmun wrote:

[T]here are the many names, celebrated for one reason or another, that

have sparked the diamond and itS environs and that have provided

tinder for recaptured thrills, for reminiscence and comparisons, and for

conversation and anticipation in season and off season: Ty Cobb, Babe

Ruth [italics supplied], Tris Speaker, Walter Johnson, Henry

Chadwich, Eddie Collins, Lou Gehrig. . . .(2)

Because Babe Ruth has long been such a ubiquitous symbol of baseball, an issue arose over the use and value of his likeness. Although he died in 1948, Ruth became the issue in a 1990 case not only because his baseball heroics had revived a sport sullied by scandal but also because of his legendary accomplishments. He boasted consistently high batting averages (.393 in 1936) and a long-held record set in 1927 of 60 home runs in 154 games.(3)

Advertisers have in recent years increasingly turned to deceased notables, "as safe, reliable promoters of products" because living celebrities have sometimes turned into public relations liabilities for the companies they represent.(4) Because Babe Ruth's daughters, Dorothy Ruth Pirone and Julia Ruth Stevens, owned a trademark for the words "Babe Ruth" they brought a lawsuit against Macmillan Incorporated for using photographs of their father in a baseball calendar, alleging federal and common law trademark infringement, unfair competition, infringement of common law right of publicity, and violation of the New York Civil Rights Law.(5)

I. THE FACTS

The United States Court of Appeals began its discussion in Pirone v. Macmillan(6) by acknowledging "that for almost a century and a half, baseball has been central to our common American heritage,"(7) and in that sense it belongs to all Americans.

The court conceded that baseball's great athletes are "public icons," and affirmed the notion that players' names and pictures are valuable commodities, owned by persons who are anxious to prevent any unauthorized use of their property.(8) The case obliged the court to determine whether the name and likeness of Babe Ruth was such a protectible commodity.

During his life, Ruth had been compensated for the use of his photograph and name when he promoted the sale of various items. After his death his daughters had registered the words "Babe Ruth" as a trademark for "paper" articles like playing cards, writing paper, and envelopes. In 1955, the Babe Ruth League was licensed to use the trademark to promote the league and its products.(9) In the mid-1980s, Curtis Management Group, Inc., of Indianapolis, Indiana, was authorized to license the trademark "Babe Ruth" in return for royalties.

In 1987, Macmillan published the 1988 Macmillan Baseball Engagement Calendar. …

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