Cepeda v. Swift and Company

• Decision Date: 23 September 1969
• Docket Number: No. 19475.,19475.
• Citation: 415 F.2d 1205
• Parties: Orlando CEPEDA, Appellant, v. SWIFT AND COMPANY, a Corporation, and Wilson Sporting Goods Company, a Corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

415 F.2d 1205 (1969)

Orlando CEPEDA, Appellant, v. SWIFT AND COMPANY, a Corporation, and Wilson Sporting Goods Company, a Corporation, Appellees.

No. 19475.

United States Court of Appeals Eighth Circuit.

September 23, 1969.

Alan E. Popkin, of Rosecan & Popkin, St. Louis, Mo., for appellant, John C. Healy, St. Louis, Mo., was on the brief with Mr. Popkin.

Harold A. Thomas, Jr., of Fordyce, Mayne, Hartman, Renard & Stribling, St. Louis, Mo., for appellee Swift & Co., Alphonso H. Voorhees, St. Louis, Mo., was on the brief with Mr. Thomas.

John P. Emde, of Armstrong, Teasdale, Kramer & Vaughan, St. Louis, Mo., for appellee Wilson Sporting Goods Co., Fred Leicht, Jr., St. Louis, Mo., was on the brief with Mr. Emde.

Before VAN OOSTERHOUT, Chief Judge, and MEHAFFY and GIBSON, Circuit Judges.

MEHAFFY, Circuit Judge.

Orlando Cepeda, a citizen of Puerto Rico and a famous major league baseball player, brought this suit in state court against Swift and Company. Upon timely removal to federal court by Swift, Cepeda filed an amended complaint, joining as an additional defendant Wilson Sporting Goods Company. The action was grounded upon the asserted unauthorized use of plaintiff's name, likeness, photograph, signature and good will by Swift in an advertising campaign utilized by one of its divisions in the promotion of sales of meat products, namely Mayrose franks and bacon.

The complaint alleged that plaintiff has become a widely renowned athlete and, as a result, his right to associate his name through endorsement of products and in connection with promotions and sales of products is an asset of great value; that his right of privacy has been invaded and infringed by defendants in their unauthorized use of his name, photograph, etc.; that this unauthorized use has unjustly enriched defendant Swift; and that plaintiff is entitled to compensatory and punitive damages. In the second count of the complaint, plaintiff asserts that on April 30, 1963 he entered into an agreement with defendant Wilson through which Wilson acquired the right to use plaintiff's name, facsimile signature, initials, portrait, or any nickname popularly applied to him, in connection with the sale of baseballs, baseball shoes, baseball gloves and baseball mitts and to license others to do the same. The contract period was for two years with an option to renew for an additional period of one, two or three years. On March 29, 1965, defendant Wilson notified plaintiff of its execution of its option to renew for a period of two years. Plaintiff further alleged that in 1967 Wilson, in disregard of plaintiff's rights, entered into an agreement with Swift by the terms of which Wilson sold baseballs to Swift and agreed that Swift could conduct an advertising campaign employing plaintiff's name and picture with the promotion and sale of Swift's meat products.

Swift did not advertise that Cepeda endorsed its meat products but merely offered Cepeda baseballs at a special price to those forwarding with their order a specified portion of the wrapper from certain products. The campaign was carried out and employed extensively by radio, television, newspapers, magazines and other advertising media in Missouri, Illinois and elsewhere.¹ Plaintiff contends that the gist of Swift's advertising campaign was to associate plaintiff's name and good will inherent in it with defendant's products, asserting that Wilson at no time had his consent to use or assign his name in connection with the promotion and sale of meat products. Plaintiff also sought compensatory and punitive damages from defendant Wilson.

The record consists of numerous interrogatories, exhibits, affidavits and motions by each of the parties for summary judgment. The district court in a memorandum opinion and order reported at 291 F.Supp. 242 (E.D.Mo.1968) sustained the motions of defendants for summary judgment, overruled plaintiff's motion, and entered judgment in favor of defendants. We affirm the judgment of the district court.

The propriety of summary judgment by the court on issues involving interpretation of the contract is not challenged by either party. Such use of a summary judgment is desirable where, as here, the contract is unambiguous. See Universal Fiberglass Corp. v. United States, 400 F.2d 926, 928 (8th Cir. 1968); Freeman v. Continental Gin Co., 381 F.2d 459, 465 (5th Cir. 1967).² Nor is it a matter of dispute that plaintiff has a valuable property right in his name, photograph and image and that he may sell these property rights. Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2nd Cir. 1953), cert. denied, 346 U.S. 816, 74 S.Ct. 26, 98 L.Ed. 343 (1953); O'Brien v. Pabst Sales Co., 124 F.2d 167 (5th Cir. 1941), cert. denied, 315 U.S. 823, 62 S.Ct. 917, 86 L.Ed. 1220 (1942); Sharman v. C. Schmidt & Sons, Inc., 216 F.Supp. 401 (E.D.Pa.1963); Munden v. Harris, 153 Mo.App. 652, 134 S.W. 1076 (1911). Therefore, the sole issue presented by this appeal is whether the contract between plaintiff and Wilson authorized the use of plaintiff's name and photograph in the manner in which they were used.

The pertinent part of the contract between plaintiff and Wilson reads as follows:

"1. Cepeda grants to Wilson the exclusive world right and license to manufacture, advertise and sell baseballs, baseball shoes, baseball gloves and baseball mitts identified by his name, facsimile signature, initials, portrait, or by any nickname popularly applied to him, and to license others so to do. During the term of this agreement Cepeda agrees not to grant any similar right or license to any other person, Cepeda shall sign all lawful documents which may be necessary to enable Wilson to secure federal, state or foreign registration of trade marks or trade names for products identified as herein provided."

The consideration for the contract was that Wilson should pay plaintiff a royalty of $1.00 per dozen on baseball catcher's or basemen's mitts, 60¢ per dozen on baseball gloves and 10¢ per dozen on baseballs sold by Wilson or its licensees, provided that the royalties should not be less than $50.00 per year nor more than $500.00 per year. When the contract was renewed, the maximum royalty was raised to $1,000 per year, but in no year have the royalties reached said maximum amounts. It is not in dispute that Wilson paid plaintiff all of the royalties for the Cepeda products manufactured and sold by it....