Haelan Laboratories Inc v Topps
From Personality Rights Database
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| United States |
Contents |
[edit] 1 Haelan Laboratories, Inc. v Topps Chewing Gum, Inc.
Case Name: Haelan Laboratories, Inc. v Topps Chewing Gum, Inc.
Key words: Assignment of personality rights, advertising, right of publicity
Country: U.S.A.
Citation: 202 F 2nd 866
Court : United States Court of Appeal, Second circuit
Date : 16.02.1953
Case N° : 158 Docket 22564
Importance : Birth of U.S. separate right of publicity
Facts: The plaintiff, a distributor of chewing gum had signed a contract with base-ball players for an exclusive right to use their picture on advertising for the chewing gum. The defendant, a competitor, aware of the exclusive right in the contract, nonetheless induced the players to authorise him to use their image for the advertising of the defendant’s chewing gum.
The plaintiff argues that the defendant invaded plaintiff’s exclusive right to use the photograph of the base-ball players. He was dismissed in the first trial.
[edit] 2 Decision and Reasoning
[edit] 2.1 Privacy: personal or assignable?
[edit] 2.1.1 A personal right
The defendant argued that even if such facts were proved, they would not lead to an actionable wrong. The plaintiff’s contract only meant that the base-ball players released the plaintiff of the liability he would have incurred for invasion of privacy but for the player’s consent. The right of privacy, in this case protected by sections 50 and 51 of the New York statute, was merely personal and non-assignable. For this reason, the plaintiff did not have any ‘property’ right or other interest which could prevent the defendant from acting.
Frank J agreed on that point. The contract created no more than the permission of using the players’ photograph. If there were no more in the contract, the plaintiff would have no actionable claim.
[edit] 2.1.2 The defendant’s agents
However, the contract also included the player’s promise not to give similar releases to others; if the defendant deliberately induced the players to enter into such contracts whereas he knew about the exclusivity clause, then he behaved tortiously. The problem in this case was above all that the defendants obtained the players consent via different means. For some, it was through its agent, Players Enterprise, for others that was through independent people. The defendant was therefore only liable for the acts of its agent, but not for those of the others.
[edit] 2.2 A new distinct right of publicity
[edit] 2.2.1 A right independent from privacy
Surely, the court was unhappy with that situation. It therefore went back to the assumption that the contract created no more than a mere release of liability, i.e. a personal and non-assignable right not to have his feelings hurt by the publication. Frank J explained that in addition to, and independent of that right of privacy, a man had a right in the publicity value of his photograph, “the right to grant the exclusive privilege of publishing his picture”. This right has an independent existence and is valid without an accompanying transfer of a business or anything else. This right was called right of publicity.
[edit] 2.2.2 The attributes of the right of publicity
It seems at this stage however that the right only exists for celebrity figures. According to the court, only prominent persons, far from having their feelings bruised through public exposure, would feel deprived if they no longer received money for authorising advertisements, newspapers…
This right would have no substance unless it could be made the subject of an exclusive grant which barred any other from using this picture.
Is it a property right? The court stated that the “tag ‘property’ only symbolizes the fact that courts enforce a claim which has a pecuniary worth”. The label of property is therefore immaterial.
[edit] 2.3 Result
Because of the “capacity publicity”, the plaintiff has a valid claim against defendant if defendant used the players’ photograph during the term of plaintiff’s grant and with knowledge of it.
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