O'Brien v. Pabst Sales Co.
1941 U.S. App. LEXIS 2452, 124 F.2d 167 (1941)
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Rule of Law:
A public figure, who has extensively publicized himself and consented to broad publicity, generally does not have an actionable right of privacy claim against the truthful, non-defamatory use of their photograph in commercial advertising unless the use falsely implies endorsement or causes demonstrable pecuniary damage.
Facts:
- David O'Brien was a famous football player, honored as a Grantland Rice Collier’s All American Football Team member in 1938.
- O'Brien had been playing football for 14 years and had extensively posed for photographs and authorized Texas Christian University's (T.C.U.) publicity department to widely distribute his picture and biographical data.
- Pabst Sales Company, a beer distributor, ordered 35,000 promotional football calendars for 1939 from Inland Lithographing Company, which were to feature football schedules and pictures of the 1938 All American team.
- The Inland Lithographing Company obtained O'Brien's photograph, a popular action shot, from T.C.U.'s publicity department, paying $1 for it, under the belief that necessary consent had been secured.
- The calendars displayed O'Brien's photograph prominently, alongside the words “Pabst Blue Ribbon,” a glass of beer, and a bottle of Pabst beer.
- O'Brien was a member of the Allied Youth of America, an organization promoting abstinence from alcohol, and had previously refused offers to endorse alcoholic beverages.
- O'Brien testified that he was greatly embarrassed and humiliated by the association of his image with beer advertising but could not present a single fact showing pecuniary damage.
- T.C.U.'s publicity director testified that his office furnished numerous photographs of O'Brien to various entities and had general authority for publicity purposes, but not for commercial advertising without O'Brien's consent.
Procedural Posture:
- David O'Brien filed a lawsuit against Pabst Sales Company in a federal district court, claiming invasion of his right of privacy and seeking damages for the unauthorized use of his photograph in advertising.
- The District Judge for the federal district court directed a verdict in favor of Pabst Sales Company, ruling that O'Brien, as a national football figure, had no right of privacy that was violated and that the calendar did not falsely imply his endorsement or cause him damage.
- O'Brien appealed the District Court's judgment, arguing that he had shown damage and that there was a factual issue regarding implied false endorsement, seeking a reversal and new trial from the United States Circuit Court of Appeals for the Fifth Circuit.
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Issue:
Does the use of a famous football player's photograph on a beer company's promotional calendar, obtained from his university's publicity department, constitute an actionable invasion of privacy or implied false endorsement when the player has extensively publicized himself and has not demonstrated pecuniary damage?
Opinions:
Majority - Hutcheson, Circuit Judge
No, the use of David O'Brien's photograph on Pabst's football calendar did not constitute an actionable invasion of privacy or an implied false endorsement. The court affirmed the district judge's decision, holding that O'Brien, as an outstanding national football figure, had extensively publicized his name and pictures, thus diminishing any claim to a right of privacy concerning them. The photograph was obtained from T.C.U.'s publicity department with real or apparent authority, and O'Brien had given general approval for such publicity. Furthermore, the court found nothing in the calendar that could be reasonably construed as falsely stating or implying that O'Brien used, endorsed, or recommended Pabst beer, noting that all facts were truthfully stated and that the business of selling beer is legitimate and respectable. The court emphasized that O'Brien's claim was for damages due to injury from an invasion of privacy, not for the reasonable value of his endorsement (quantum meruit), a distinct claim not before the court, and he had not shown any pecuniary damage.
Dissenting - Holmes, Circuit Judge
Yes, David O'Brien should be entitled to recover the reasonable value of the use of his picture for advertising purposes. Justice Holmes argued that the right to use one’s name or picture for commercial advertisement is a distinct property right, separate from the right of privacy, which belongs to everyone and may have significant value. He contended that the common law of Texas, while adopted early, is capable of growth and adaptation to modern demands, such as those created by advertising. Holmes pointed out that commercial advertisers customarily pay for the right to use famous individuals' likenesses, and the defendant's requirement for releases indicated their awareness of this custom, which they admittedly failed to obtain for O'Brien. He cited O'Brien's refusal of previous beer endorsement offers as evidence of the value of his image. Holmes believed that the facts alleged in the complaint supported a claim for the misappropriation of a valuable property right, and that the amount of damages should have been submitted to a jury, rather than directing a verdict for the defendant. He expressed concern that the majority's decision would leave famous figures without a remedy for unauthorized commercial use of their images.
Analysis:
This case is significant for its early treatment of the distinction between the right of privacy and the nascent concept of a 'right of publicity,' particularly for public figures. The majority's emphasis on O'Brien's public figure status and the absence of false endorsement or demonstrable pecuniary damage created a high bar for recovery under a privacy claim. The dissent, however, articulated a compelling argument for a distinct property right in one's name and likeness for commercial use, foreshadowing the eventual development of the modern right of publicity doctrine. This divergence highlights an important tension in early jurisprudence regarding how to protect individuals' control over their image in an increasingly commercialized society.
