Uhlaender v. Henricksen

• Citation: 316 F. Supp. 1277
• Decision Date: 25 August 1970
• Docket Number: No. 5-70 Civ. 8.,5-70 Civ. 8.
• Parties: Theodore Otto UHLAENDER, also known as "Ted" Uhlaender, on behalf of himself and all other professional league baseball players similarly situated, and Marvin L. Miller, Executive Director of the Major League Baseball Players Association, Plaintiffs, v. Keith T. HENRICKSEN and Kent L. Henricksen, individually and d/b/a Nemadji Game Company, also known as Negamco, Defendants.
• Court: U.S. District Court — District of Minnesota

316 F. Supp. 1277

Theodore Otto UHLAENDER, also known as "Ted" Uhlaender, on behalf of himself and all other professional league baseball players similarly situated, and Marvin L. Miller, Executive Director of the Major League Baseball Players Association, Plaintiffs, v. Keith T. HENRICKSEN and Kent L. Henricksen, individually and d/b/a Nemadji Game Company, also known as Negamco, Defendants.

No. 5-70 Civ. 8.

United States District Court, D. Minnesota, Fifth Division.

August 25, 1970.

Robins, Davis & Lyons, by Lawrence Zelle, Minneapolis, Minn., for plaintiffs.

Reavill, Neimeyer, Johnson, Fredin & Killen, by R. B. Reavill, Duluth, Minn., for defendants.

NEVILLE, District Judge.

Presented to the court is the question as to whether some several hundred Major League Baseball Players, appearing in this action by one such individual player and by an unincorporated association of major league baseball players have a proprietary or property interest in their names, sporting activities and accomplishments so as to enable them to enjoin the use thereof for commercial purposes by private entrepreneurs engaged in the manufacture of parlor or table games which employ and use their names and sports accomplishments. Diversity jurisdiction is clear, and no challenge is made as to the sufficiency of the parties plaintiff.

Defendants manufacture and sell games called "Negamco's Major League Baseball" and "Big League Manager Baseball." These employ the names and professional statistical information such as batting, fielding, earned run and other averages of some 500 to 700 major league baseball players, identified by team, uniform number, playing position and otherwise.

Defendants' 1967 advertising contained such statements as:

"SCIENTIFICALLY COMPUTED Players are rated in every phase of baseball play. Each pitcher is different and each batter is different. You manage 520 big time players. Your strategy affects the outcome of every game. This game is Big, Colorful, and True. 220 pitchers and 300 fielders are included.

Can be played solitaire, or leagues of 20 can be formed of neighborhood friends. As coach you call the infield position, coach the base runners, select the line-ups, and make many, many other decisions! With BLM, good managing is needed!"

It is clear to the court that the use of the baseball players' names and statistical information is intended to and does make defendants' games more salable to the public than otherwise would be the case. Counsel for plaintiff Association of Major League Baseball Players, an unincorporated association, testified that the association was formed in 1966 to represent the major league baseball players' common interest and that this association is authorized by all but a handful of major league baseball players to act for them in marketing and licensing the use of group names or for group endorsement purposes. The Association does not represent players insofar as they desire to make or have made individual product or other endorsements. The Association now represents over 850 major league baseball players and to date it has issued some 27 different licensing contracts or agreements for group licenses, including four or five other parlor game manufacturers, calling for payments of 5% of gross sales with a minimum royalty of $2,500 per year. These agreements generated over $400,000 income in 1969 all of which is distributed equally, and not according to prominence or excellence in accomplishments, to the various player members. As far back as January, 1967 the plaintiff association wrote defendants notifying them that they were exploiting a claimed property right and offering to enter into a licensing agreement. Defendants have consistently refused so to do. All agreements contain a "most favored nations clause" binding the association to treat all people in the same class similarly and to make no agreement with one which is any more lenient or different than the agreements made with any others. Since several contracts are now extant, plaintiff association stated it will offer no different one to these defendants.

Two major league baseball players, James L. Kaat and James L. Perry, Jr. testified that they believe and consider their names to have financial value and that they do not and did not consent to the use thereof by defendants without an arrangement for payment of a royalty or fee.

Defendants do not deny that they are using the names as alleged. They assert, however, (1) that there is nothing offensive nor demeaning about the way the names are used, which both witnesses Kaat and Perry acknowledged; (2) that the names and statistics concerning sports achievements used in the game are readily available to anyone at Major League offices on inquiry, are published with some regularity in the newspapers and news media and are thus in the public domain; (3) baseball players seek and are anxious for publicity which defendants' games tend to further; (4) the plaintiff association by insisting on a minimum of $2,500 from each licensee tends "to keep little people out of the business" constituting in some way a conspiracy in violation of the antitrust laws.

The defendants insist upon characterizing this action as one involving an alleged invasion of the right of privacy. The complaint however does not predicate its claim for relief upon any assertion of a right to be let alone. Instead, plaintiffs' claim "misappropriation and use for commercial profit of the names of professional major league baseball players without the payment of royalties."¹ The distinction between these two legal theories is important to the disposition of the case.

Prosser, in Handbook of the Law of Torts, (3d Ed., 1964), Chapter 22, has attempted to organize the voluminous case law on invasion of privacy and appropriation of name or likeness² by classifying the decisions according to four specific categories: (1) intrusion upon the plaintiff's physical solitude, (2) public disclosure of private facts, (3) placing the plaintiff in a false light in the public eye, and (4) appropriation for commercial benefit of the plaintiff's name or likeness. "It is evident that these four forms of invasion of privacy are distinct, and based on different elements. It is the failure to recognize this which has been responsible for much of the apparent confusion in the decisions." Prosser, op. cit., pp. 842-43.

Although misappropriation of one's name, likeness or personality for commercial use has been considered as one species of the general tort of invasion of privacy,³ many authorities suggest that misappropriation is a distinctly independent tort. The reasoning behind this approach is that Prosser's first three categories involve the incidence of specific personal harm (i. e., injury to feelings), while the fourth is generally considered to involve a pecuniary loss, an interference with property. 77 C.J.S. Right of Privacy § 2, p. 400, for instance, limits the tort of "invasion of privacy" to those courses of conduct which produce injury to "feelings and sensibilities of human beings, rather than to * * * property, business, or other pecuniary interests." Likewise, Gordon, in "Right of Property in Name, Likeness, Personality and History", 55 Nw.U.L.Rev. 553 (1960), at 554, distinguishes the right of privacy from property rights as follows:

"Much of the confusion and conflict in the decisions arose because litigants chose to sue in almost every case for invasion of privacy (premised on injury to feelings), rather than for the appropriation for commercial exploitation of property rights in name, likeness, etc., in situations where injury to feelings had only secondary application."

See also Green, "The Right of Privacy", 27 Ill.L.Rev. 237 (1932), (distinguishing between "harms of defamation" and "harms of appropriation"), Canessa v. J. I. Kislak, Inc., 97 N.J.Super. 327, 235 A.2d 62 (1967). See a lengthy Annotation: "Invasion of Privacy By Use Of Plaintiff's Name or Likeness In Advertising," in 23 A.L.R.3d 865 (1969).⁴

However misappropriation is classified, recent cases illustrate that there may be substantive importance in distinguishing it from torts involving invasion of plaintiff's "right to be let alone." In 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), a famous football player alleged that the defendant had used his photograph for certain commercial purposes without his consent. The complaint claimed damages for invasion of privacy. While the Court recognized the existence at common law of such an action, it affirmed the trial court's directed verdict for defendant because plaintiff had failed to establish direct injury to his personal feelings. The court went on to state that its decision on that claim would not affect:

"The right of a person to recover on quantum meruit, for the use of his name in advertising. 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." 124 F.2d 167, 170.

In Canessa v. J. I. Kislak, Inc., supra, plaintiffs sued defendants to recover damages for the unauthorized appropriation by defendant of their pictures, names, and elements of their personalities and private lives in connection with the defendant's republication for commercial purposes of a news article in which they had appeared. The court stated, inter alia, "Plaintiffs' names and likenesses belong to them. As such they are property. They are things of value." 235 A.2d 62, 76.

A logical extension of the concept that misappropriation of one's name or public personality is a compensable trespass to property has been the recognition of the so-called "right of publicity." It has been held that the exclusive licensee of the right to exploit a celebrity's name, likeness or personality has a...