Hirsch v. S.C. Johnson & Son, Inc.

• Decision Date: 29 June 1979
• Docket Number: No. 76-620,76-620
• Citation: 280 N.W.2d 129,90 Wis.2d 379
• Parties: , 205 U.S.P.Q. 920 Elroy HIRSCH, Plaintiff-Appellant, v. S. C. JOHNSON & SON, INC., Employers Insurance of Wausau, and Continental Casualty Company, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 129

280 N.W.2d 129

90 Wis.2d 379, 205 U.S.P.Q. 920

Elroy HIRSCH, Plaintiff-Appellant, v. S. C. JOHNSON & SON, INC., Employers Insurance of Wausau and Continental Casualty Company, Defendants-Respondents.

No. 76-620.

Supreme Court of Wisconsin.

Argued May 31, 1979.

Decided June 29, 1979.

Foley & Capwell, S. C., Racine, on brief, for plaintiff-appellant; Rex Capwell, Racine, argued.

Alan M. Clack (argued), Thompson & Coates, Ltd., Racine, Beverly W. Pattishall (argued), Robert M. Newbury and Pattishall, McAuliffe & Hofstetter, Chicago, Ill., on brief, for defendants-respondents.

HEFFERNAN, Justice.

This appeal involves only questions of law, for the judgment was granted upon the defendants' motion at the close of the plaintiff's evidence to dismiss for failure to prove the existence of a cause of action upon which relief can be granted.

Elroy Hirsch, the plaintiff, seeks damages for the unauthorized use of his nickname, "Crazylegs," on a shaving gel manufactured by the defendant, S. C. Johnson & Son, Inc. Johnson admitted in its answer that it knew that Hirsch is nicknamed "Crazylegs" and admitted that it marketed a product, a moisturizing shaving gel for women, under the name of "Crazylegs." It acknowledged that it had not received Hirsch's consent for the use of this nickname but also alleged that the name, "Crazylegs," was not exclusively used with reference to the plaintiff; and it denied any misappropriation or damage to the defendant. The case was tried for five days, and the motion to dismiss was brought at the close of the plaintiff's case.

Two legal issues surfaced as being controlling and were the subject matter of the motion to dismiss. The first is whether a cause of action for appropriation of a person's name for commercial use exists as a matter of Wisconsin common law. Johnson asserts that the cause of action for the appropriation of a person's name for trade purposes is part and parcel of the law of privacy and makes the further undisputed contention that the right of privacy has never been accepted in Wisconsin as a matter of common law and on numerous occasions has been rejected. The second issue is whether the plaintiff established a prima facie case of common law trademark or tradename infringement when he failed to allege or prove that his name had ever been used to identify a product or service.

We conclude that the plaintiff's pleadings and proof were sufficient to state a cause of action upon which relief can be granted under both theories. A cause of action for the appropriation of a person's name for trade purposes is different in nature from other privacy torts, and prior decisions of this court are not controlling. The appropriation cause of action protects not merely the right to be let alone but, rather, protects primarily the property rights in the publicity value of aspects of a person's identity.

In respect to the second issue, we base our conclusion upon the rationale that the trial court failed to consider the common law of tradename infringement (as distinguished from trademark infringement) and that, under tradename law, there need be no evidence of the prior marketing of a product or service under the plaintiff's nickname, "Crazylegs." It is sufficient to allege and prove the cause of action to show that "Crazylegs" designated the plaintiff's vocation or occupation as a sports figure and that the use of the name on a shaving gel for women created a likelihood of confusion as to sponsorship. We therefore reverse and remand the cause for a new trial.

Assuming that the facts proved spelled out a cause of action cognizable by the common law of Wisconsin, the defendants did not dispute the plaintiff's assertion that a prima facie case had been made entitling the plaintiff to go to the jury. The motion to dismiss at the close of the plaintiff's case is the equivalent of the common law demurrer to the evidence or a motion for involuntary nonsuit. The motion admitted the principal facts alleged but denied that those facts spell out any cause of action known to the common law. By so doing, the defendants have not waived their right upon retrial to dispute the evidence or to contend that the evidence is insufficient to sustain the cause of action. All that is before the court at this point is the equivalent of an involuntary nonsuit. The defendants acknowledge in their brief on this appeal that, "(T)his case is before this Court only on questions of law."

It is undisputed that Elroy Hirsch is a sports figure of national prominence. The testimony showed that Hirsch was an outstanding athlete at the Wausau (Wisconsin) High School, and thereafter he entered the University of Wisconsin in 1942. From the outset he proved to be a superstar of the era. In the fourth game of his first season of play at Wisconsin, he acquired the name, "Crazylegs." In that game, Hirsch ran 62 yards for a touchdown, wobbling down the sideline looking as though he might step out of bounds at any moment. Hirsch's unique running style, which looked something like a whirling eggbeater, drew the attention of a sportswriter for the Chicago Daily News who tagged Hirsch with the nickname, "Crazylegs." It is undisputed that the name stuck, and Hirsch has been known as "Crazylegs" ever since. We take judicial notice of the fact that as recently as June 24, 1979, he was referred to as "Crazylegs" in the Madison newspaper, the "Wisconsin State Journal."

After the United States entered World War II, Hirsch left the University of Wisconsin and was assigned to Marine Corps Officer Training at the University of Michigan. He there participated in football, basketball, baseball, and track, and was the first person to earn four letters in one year at that school. His college and service athletic credits included 1942 All Big Ten, 1942 All American, Wisconsin, 1943 All American, Michigan, 1945 All Service El Toro Marines, and 1946 Most Valuable Player of the College All Star Game. He thereafter starred with the Chicago Rockets and the Los Angeles Rams, both professional teams. He also played professional basketball with the Racine, Wisconsin, Knights in 1948. He played football with the Los Angeles Rams from 1949 until 1957. During this period his professional achievements included 1951 All Pro NFL, 1952 Pro Ball Squad, 1953 All Pro NFL, and in 1970 he was named on the All Time All Pro Team for the first fifty years of football. He received numerous other athletic awards, and as recently as 1977 he received the Hickok Golden Link Award, one of the few recipients in history, on the basis of his outstanding traits of character, as well as for his athletic performance.

During his career as an athlete Hirsch did a number of advertisements, in all of which he was identified as "Crazylegs." After his active playing days, he was a general manager of the Rams football team and assistant to the president of the Rams organization. In 1969 he became athletic director of the University of Wisconsin.

In addition to there being evidence of numerous commercials which used the name, "Crazylegs," there was evidence introduced to show that a movie was made in the 1950s of his life called, "Crazylegs All American." This movie is still being shown on television. Hirsch stated that he had been protective of his name and what type product it was connected with. He stated that he refused to do cigarette advertising and that he declined to do any advertising for liquor and that he had a beer commercial withdrawn after he became the athletic director at the University of Wisconsin. In each case his nickname, "Crazylegs," was used to identify him.

There was evidence to show that the usual minimum compensation for the use of an athlete's name on an unrelated product was five percent of gross sales. Two expert witnesses testified, and it is undisputed that these witnesses were experts in the business of representing celebrities in the endorsement of products or in licensing the use of athletes' names for advertising purposes.

On the motion to dismiss, the defendants argued, and the court concluded, that a cause of action does not exist in Wisconsin for the unauthorized use of a person's name for the purposes of trade, even assuming, for the purpose of the motion, the factual finding that Johnson was using Hirsch's name without consent. The court also concluded, consistent with the defendants' argument, that an essential element of the cause of action for a common law trademark infringement was the prior use of the name, "Crazylegs," to identify goods or services and that Hirsch had not produced such proof.

We consider these causes of action separately.

The defendants conceded that "Crazylegs" is the plaintiff's nickname and that Johnson marketed a product under that name. It is clear from the record that the plaintiff presented sufficient credible evidence upon which a jury could find, as a matter of fact, that the name, "Crazylegs," identified Hirsch and that the use of that name had a commercial value to Johnson. The question dispositive of this appeal, although not of the case on retrial, is whether as a matter of law a cause of action exists for the unauthorized commercial use of the name, "Crazylegs." Subsequent to the operative facts in this case, the Wisconsin legislature in 1977 enacted sec. 895.50, Stats., under the general caption of the "Right of privacy." One of the definitions of "invasion of privacy" is included in the provisions of sec. 895.50(2)(b):

"The use, for advertising purposes or for purposes of trade, of the name, portrait or picture of any living person, without having first obtained the written consent of the person . . . ."

Under the law enacted by the legislature in 1977, Hirsch would now have a cause of action. This statute, however, was enacted after Johnson's "Crazylegs" product was taken off the market, and the question here presented is whether plaintiff had a cause of action under the...