Rosa and Josefa Blazek have been violin-playing conjoined twins from the Czech Republic who toured america within the Twenties. Rosa’s 11-year-old son, Franz Blazek, was featured prominently in ads used to advertise the twins’ performances.
Feeling exploited and embarrassed by the oft-used tagline “son of two moms,” a lawsuit was filed in Prepare dinner County, Illinois on Franz’s behalf in opposition to the sisters’ supervisor in February 1922 looking for courtroom intervention to cease additional use of Franz’s identify and {photograph} in newspaper ads.
In late March, nevertheless, Josefa contracted extreme pneumonia, which necessitated the twins’ admission to West Finish Hospital in Chicago. Rosa was “touched barely by jaundice,” however was in any other case wholesome. Appreciable thought was given to an try to sever the twins, however the concept was deserted after x-rays confirmed it not possible. Sadly, the sisters died on March 30.
As a result of the twins had organs in frequent and every had nursed Franz as a child, unprecedented questions arose whether or not the kid was the son of each girls and whether or not he ought to inherit their whole $100,000 property—or simply his mom’s half. It was the eventual ruling in Franz’s lawsuit in opposition to the supervisor, nevertheless, that might loom massive in a livid baseball card authorized battle waged by the Bowman Gum Firm in 1949.
The Gamers: Leaf Gum Firm
The Leaf Gum Firm was an business large in 1949, reporting fiscal 12 months gross sales in extra of $8 million (over $100 million right now) and boasting distribution to all 48 states. Since 1926, Leaf had offered each number of chewing gum conceivable and was the world’s largest producer of penny gumballs.
Leaf’s subsidiary corporations had used illustrations of Main League ball gamers (and umpires) to assist promote its merchandise starting in 1934 with the Deitz Gum Firm “Ballplayers in Motion” set (designated R304 and known as the “Al Demaree Die Cuts” within the Buying and selling Card Database).
One other Leaf subsidiary, Overland Sweet Firm, produced “Baseball Rolls” from 1937 by way of 1942. This was a gum or sweet product rolled in a paper wrapper imprinted with a sketch of a Main League Baseball participant and containing a short biography. The set (R301) ultimately comprised 63 completely different wrappers. The biographical info, nevertheless, was usually obscure or inaccurate. For instance, the (undated) Invoice Nicholson wrapper indicated that the “fashionable outfielder made an enviable report with the Cubs final season. Moreover doing a bang-up job out in proper subject, he made 27 dwelling runs which accounted for lots of runs batted in.” Nickelson, nevertheless, had by no means completed any season with 27 dwelling runs. (He did knock in “numerous runs” although.)
In keeping with Leaf’s Reply, Leaf utilized massive pictures of baseball gamers as premiums for gum gross sales in 1941 and in a part of 1942. Leaf connected a 5”x7” {photograph} of Dodgers first baseman Dolph Camilli as Exhibit D to its Reply. (This particular card is not among those listed on Trading Card Database for Camilli. It’s unclear how these have been truly distributed, whether or not the set was catalogued, or what different playing cards could have been produced.)
Leaf introduced its plans to compete with Bowman for nationwide baseball card supremacy beginning in 1949. Promotional supplies for Leaf’s “All-Star Footage Bubble Gum” product knocked the scale and high quality of Bowman’s black-and-white 1948 launch. Particularly, Leaf boasted their product would come with “over 300 Main League stars from this 12 months’s squads” with playing cards of “full ‘lagging measurement’ in beautiful, sensible colours” and the identify of every participant “proper on the entrance of the cardboard.” Moreover, the backs have been set to incorporate “sportswriters’ full 1949 histories of all gamers.” Leaf printed the playing cards themselves and bought further printing gear prematurely of its 1949 baseball subject.
Bought at retail in five-cent packs containing three items of gum and 5 image playing cards, Leaf provided its 24-pack packing containers at wholesale for 72¢ every, with a minimal order of three 20-box instances. (The $14.40 price per case is roughly $190 right now.) As a bonus, Leaf additionally packed a 5”x7” picture of Babe Ruth (who had handed away on August 16, 1948) in every field as a reward for the client of the final pack.
The 1949 Leaf playing cards have been 2-3/8” x 2-7/8” (roughly 32% larger than the 1949 Bowman playing cards). All 16 groups have been to be represented. Leaf shipped its first truckload of All-Star Gum product to Boston, Massachusetts on March 14, 1949. The Bowman Gum Firm was not happy.
The Gamers: Bowman Gum Firm
Bowman Gum Firm (when referred to as Gum, Inc.) produced “Play Ball” units from 1939 by way of 1941. The 1939 Play Ball set included 15 groups (no Cubs) and used black-and-white images with no identify on entrance. The set totaled 161 playing cards (no card 126 was issued) regardless of the cardboard backs indicating there have been 250 playing cards within the set. The 1940 set included 240 playing cards and all 16 groups. The playing cards used black-and-white images, however now included the identify on entrance. The 1941 Play Ball set was pared right down to 72 playing cards and excluded the Cubs all collectively, together with the remaining 15 groups, with two playing cards displaying Boston “Bees” and later playing cards up to date to point out the staff’s identify change to “Braves.”
Nevertheless, the manufacture of bubble gum was discontinued throughout World Battle II as a result of unavailability of pure latex (a vital ingredient in Bowman’s gum), so no Play Ball units have been issued after 1941. The Play Ball units have been produced in a bigger measurement (2-1/2” x 3-1/8”) than the Bowman units beginning in 1948.
With the battle over and rations lifted, Bowman revived its baseball card gum product within the spring of 1948 as they entered contracts with 48 Main League Baseball gamers that gave Bowman unique rights to subject playing cards at the side of its gum merchandise for one 12 months. That 48-card 1948 Bowman set was issued in black-and-white with smallish playing cards sized 2-1/8” x 2-1/2”. Of the 16 Main League groups on the time, solely 10 have been represented. (There have been no playing cards issued for any gamers on the Crimson Sox, Cubs, White Sox, Tigers, Browns, or Senators.) Bowman’s packs contained three items of gum and 5 playing cards and have been offered at retail for 5 cents. The packs have been first distributed in June 1948 and offered by way of September. Gross sales have been substantial – the $361,000 income attributed to the 1948 Bowman subject can be equal to about $4.7 million right now.
Getting ready for 1949, Bowman entered contracts with 240 Main League gamers (and 36 gamers of the Pacific Coast League) within the fall of 1948. These contracts referred to as for the fee of 1 greenback on the time the contract was signed and the stability of $99 to be paid on January 15, 1949. Shortly after signing these contracts, Bowman introduced to the business that they might be producing the bigger set for the approaching season set for distribution by April 1, as “kids eagerly awaited the opening of the particular league contests.” [Although $100 per player may not seem necessarily substantial, in the aggregate Bowman had expended $24,000 (in excess of $300,000 today) to procure the rights for its 1949 set and paid an additional $12,000 to Art Flynn, who obtained the signed contracts for Bowman.]
Opening Salvo
Bowman had their attorneys fireplace off a gravely worded letter on Wednesday, March 16, 1949 to the Leaf Gum Firm, which learn:
“Gents:
We’ve been retained by Bowman Gum, Inc. of Philadelphia, Pennsylvania, who’ve unique contracts with numerous baseball gamers for the usage of their photos in reference to the sale of Bubble Gum.
Our consumer advises that you’ve information of the existence of those unique contracts with it, however that you’re however now delivery and promoting Bubble Gum in packages containing photos of ball gamers with whom our consumer has such contracts. You’re accordingly notified, and until you instantly stop and desist from any additional shipments or gross sales of Bubble Gum containing any such photos, we will institute acceptable motion in opposition to you for injunctive aid and damages. Except we obtain your assurance instantly upon receipt of this letter that no additional shipments or gross sales containing such photos might be made, we’ll institute proceedings directly.”
Yours very really,
AARON, AARON, SCHIMBERG & HESS
By: (sd) Lewis Schimberg”
Regardless of these threats of authorized motion, vans stored leaving Leaf’s manufacturing unit at 1155 N. Cicero in Chicago loaded with instances of All-Star Gum. So, Bowman wasted no time commencing authorized motion in opposition to Leaf.
Bowman Lawsuit Filed
On Monday, March 21 Bowman filed its grievance in opposition to Leaf within the Superior Court docket of Prepare dinner County in Chicago. A number of particular person gamers have been additionally named as plaintiffs, together with Johnny Mize, Sid Gordon, Whitey Lockman, Sheldon Jones, Larry Jansen, Walker Cooper, Willard Marshall, Clinton Hartung, John Kerr, Dave Koslo, William Rigney, Robert Thomson, and Jack Lohrke. (Hereinafter the group of plaintiffs—which grew because the case progressed—might be known as “Bowman” or “Plaintiffs.”) That the verified grievance was signed by Bowman’s Secretary Harry Shapiro on March 18 and participant agent Artwork Flynn on March 19 certainly signifies that Bowman didn’t anticipate Leaf would adjust to the “stop and desist” letter.
Plaintiffs alleged of their Grievance that Leaf knew that Bowman had entered into unique contracts with the ball gamers—however went forward with the manufacture of their baseball card gum product, anyway. As was needed to hunt a everlasting injunction, Bowman (dramatically) asserted that Leaf’s competing product would depart Bowman unable to promote its personal baseball card gum in 1949 and push the a lot smaller firm to the precipice of monetary destroy. Bowman claimed it was “certainly a really small producer within the gum subject, though its enterprise constituted an especially useful one.”
Accordingly, Bowman requested the courtroom to enjoin (legally prohibit by means of injunction) Leaf from “promoting, delivery, promoting, or providing on the market or distribution, straight or not directly, at, from or to anywhere in america, any type of chewing gum, together with bubble gum, in packages containing photos of any of the baseball gamers listed of their grievance.” Plaintiffs additional requested that Leaf be ordered to destroy all packs, wrappers, and playing cards that had already been manufactured. Lastly, Bowman requested for financial damages.
Leaf’s Reply
Leaf admitted of their Reply that they’d first shipped instances of All-Star Gum into Boston, Massachusetts, on or about March 14, 1949 (which ought to put to relaxation any passion hypothesis that Leaf started distributing this subject in 1948). For his or her protection, Leaf claimed that no “proper of privateness” connected to the ball gamers as a result of they have been public figures; denied that Bowman might legally implement their “unique contracts” with any of the ball gamers; emphasised that solely two of the named plaintiffs (Johnny Mize and William Rigney) appeared on the playing cards issued by Leaf; and denied having any advance information in regards to the measurement, shade, or contents of Bowman’s deliberate 1949 baseball card subject. Of the 49 playing cards issued by Leaf within the first sequence, 33 have been contracted to Bowman, 15 of whom have been plaintiff within the topic lawsuit.
Leaf additional claimed that Bowman had not complained about Leaf’s soccer playing cards issued within the fall of 1948 that have been packaged with three sticks of gum and 5 playing cards, similar to Bowman’s 1948 soccer subject. Moreover, early 1949 Leaf problems with “Knockout” boxing playing cards and basketball playing cards drew no protest from Bowman, which had additionally issued comparable units. Leaf additionally emphasised that Topps’ 1948 “Hocus-Pocus” set included a number of baseball gamers, together with a Lou Boudreau card connected as an exhibit to their reply, and Bowman had not made any grievance relating to the Topps product.
Lastly, Leaf indicated that their baseball sequence had “been available on the market for quite a lot of weeks; and to the information of defendants, company plaintiff has not but positioned on the market a product of the same nature.”
Put Up Yer Dukes
The matter was assigned to Decide Frank Padden, who in flip, appointed a Chancery Grasp to listen to proof and supply his opinions as to a therefrom. Most frequently, a grasp in chancery is a practising legal professional, not a decide. Within the Bowman case, the grasp’s duties have been handed over to Herbert Paschen, a Chicago legal professional who was unsuccessful in a subsequent bid for Illinois governor and was ultimately elected as a Prepare dinner County decide in 1962. The events submitted their proof on April 25, 1949 after which exchanged blows over two days of oral argument Might 2 and Might 3.
Bowman led with their strongest argument, particularly that Leaf was infringing on the 237 unique participant contracts it had begun assembling in October 1948. Bowman had first shipped its product on March 15, 1949 (sooner or later after Leaf’s first truckload of All-Star Gum set off for Boston) and by the point of argument, was being distributed to all 48 states. Gross sales to that time totaled $71,000 (about $940,000 right now). Their first sequence contained “roughly 108 completely different photos” with further sequence to be launched at deliberate three-week intervals. Just like the 12 months earlier than, Bowman packs included 5 playing cards and three items of gum.
Leaf freely admitted it had no contracts with any of the gamers, nevertheless, they argued that as a result of Main League gamers have been public figures, the general public’s curiosity within the distribution of images and information about them outweighed the gamers’ privateness. The images utilized by Leaf have been obtained by way of a number of sources, however the majority have been obtained from photographer Emmett “Flash” Wiggins.
Pursuant to the on-field press passes granted by the Cubs and White Sox, Wiggins had amassed an exhaustive file of participant pictures (some 50,000 negatives) and counted the Cubs, the Sporting Information, Hillerich & Bradsby, Common Footage, and Pabst Blue Ribbon Beer Firm, amongst his greatest clients. Wiggins believed he had given out roughly 5000 copies of pictures to ball gamers over the previous a number of years. He additionally made his pictures accessible to the general public at 5 {dollars} every (about $66 right now!) or $7.50 (about $100 right now) per hundred for the gamers themselves. A lot of the images have been posed.
Wiggins testified that not one of the ball gamers had ever advised Wiggins that the photographs might not be used commercially (although he admitted he didn’t essentially advise them he was promoting their photos). Furthermore, there have been no printed restrictions on the usage of any such pictures and every of the picture suppliers knew that Leaf was buying the images for the manufacturing of bubble gum playing cards.
Bowman answered that as a result of photos of celebrities have been extremely sought-after by collectors, the rights to make use of the images have been a profitable supply of revenue for the people. Bowman dismissed as disingenuous Leaf’s assertion that their playing cards have been merely ephemeral biographies or information objects. Bowman cited to Edison v. Edison Polyform Firm, a New Jersey case from 1907 by which Thomas Edison efficiently prevented the defendant firm from utilizing his image in promoting its merchandise, as a result of he was not concerned in any respect within the firm itself.
Though Leaf deliberate a set of 300 playing cards, simply the primary 49 All-Star Gum playing cards had been distributed to that time (albeit throughout 80% of america) and Leaf’s attorneys submitted an uncut sheet of that first sequence into proof. Leaf claimed that the All-Star Gum hit the market in March 1949 and complete gross sales of that preliminary sequence had approached 145,000 packing containers. (At 72¢ per field, the $104,000 price of product offered to that time can be roughly $1.38 million right now.)
Leaf argued additional that the sale or publication of uncopyrighted pictures, together with these taken by Wiggins, entered the general public area. Accordingly, the images offered to Leaf for its card set have been free for use for any business goal, together with replica and promoting. As a result of Wiggins took the images at his personal expense, he had the implied proper to manage the publication, distribution, and resale of the images. Authority was clear {that a} single sale constituted publication.
Bowman responded that that as a result of Wiggins took the gamers’ pictures as a press photographer—not a business photographer—Leaf had acquired pictures as results of a breach of confidence. Bowman additionally accused Leaf of appropriating its advertising plans by promoting the same amount of playing cards and gum in a five-cent package deal (regardless of Leaf having used the identical configuration for its 1948 soccer card packs).
Bowman argues that the “proper of privateness” idea launched by Samuel Warren and Louis Brandeis within the Harvard Regulation Assessment revealed in 1890 utilized in Illinois. Nonetheless a creating space of legislation within the Nineteen Forties, the courts in 15 states, the District of Columbia, and Alaska (which was not but a state) had formally acknowledged the proper. Three further states had enacted statutory proper of privateness legal guidelines. Conversely, three states (Rhode Island, Wisconsin, and Michigan) had affirmatively held that no such proper of privateness existed. Illinois was with out revealed precedent relating to the proper of privateness, nevertheless.
Leaf claimed, nevertheless, that the Warren and Brandeis article expressly asserted that the proper to privateness ceased upon publication and that any proper of privateness didn’t prohibit publication of a matter that was of public or basic curiosity. Leaf cited to O’Brien v. Pabst Blue Ribbon case, a case by which Davey O’Brien, a teetotaling skilled soccer participant, was not allowed to object to his identify and {photograph} being utilized in a soccer schedule given away by the Pabst brewery. As a result of O’Brien had posed willingly for the picture, “the publicity he bought was solely that which he had been consistently looking for.”
Leaf additional accused Bowman of together with photos of well-known generals and its battle playing cards with out their consent. It additionally claimed that the New Jersey Edison case was not probative in that his identify was utilized by utility corporations in Chicago, New York, Boston, and elsewhere, with out his having any reference to these entities. Leaf even went thus far to assert that the “Bowman” identify was not unique in that Chicago’s Bowman Dairy Firm was ready to make use of the identify with out menace of confusion.
The Leaf attorneys as an alternative relied on the 1935 Hanna case by which the Fifth Circuit discovered that fame was not merchandise because it utilized to utilizing well-known baseball gamers to promote mannequin bats, “it will assist neither sportsmanship nor enterprise to carry a sale of a well-known identify to the very best bidder.” [This seemingly antiquated concept has obviously changed over time and even in the 14 years that had passed since the Hanna case was decided.]
Leaf lastly claimed that Bowman had tried to monopolize the sale of gum in violation of the federal antitrust legal guidelines by making an attempt to “cease distribution by others of fabric regarding our nationwide pastime. If the idea of fresh palms means something in fairness, jurisprudence requires software right here. The perpetrators of monopoly have come into fairness for help and help and their petition must be denied.”
Affidavits submitted by Bowman have been additionally considered. For instance, Bowman gross sales agent Charles Meek averred that Leaf started circulating promotional supplies round Chicago stressing that their playing cards have been massive and that the youngsters would need them “for lagging, amassing and for buying and selling.” (Lagging was a betting sport by which youngsters would toss their playing cards in an try to face them up in opposition to a wall.) Meek believed that the Leaf playing cards would diminish Bowman’s gross sales as a result of they have been bigger, and since the playing cards have been offered in sequence, kids would favor to attempt to full Leaf’s first-to-market subject. Meek then executed a supplemental affidavit on March 30 indicating he had personally seen “not lower than 100 packing containers of the defendant Leaf’s product All-Star bubblegum” at a Chicago wholesaler and later advised the cargo, “contained 1000 packing containers of defendant’s product, every field containing 24 packs, or 24,000 packages in all.” Meek additionally testified that Bowman’s authentic intention was to withhold “distribution till on or in regards to the 1st day of April to be able to coincide with the opening of the baseball season.”
The Evocation of Franz Blazek
Bowman’s argument culminated within the Blazek case as they claimed that Illinois had acknowledged the “proper of publicity” when the Prepare dinner County Court docket dominated in favor of Franz Blazek in 1922. In Blazek, a short lived injunction had been granted on the grounds that the proper to publish Blazek’s {photograph} to assist promote his mom’s public appearances was a useful property proper and utilizing that {photograph} with out his permission (or fee) was a violation of the kid’s proper of property and privateness.
Leaf objected to any reference to the Blazek case, nevertheless, as a result of the opinion was unpublished; all of Bowman’s citations to Blazek got here from a secondhand account of the case present in a reporter revealed in 1930; and the precise courtroom file had mysteriously disappeared. A diligent search was made for the courtroom file; nevertheless, the clerk of the Circuit Court docket of Prepare dinner County suggested it has been lacking for a substantial interval.
With out an official opinion, Leaf posited it was not possible to find out the Court docket’s reasoning for its ruling and recommended it was potential the choice was based mostly on procedural causes and never on the deserves of the case. Moreover, the allegations in Blazek seemed to be based on misrepresentation and never the proper of privateness. Leaf argued that Illinois had not adopted the proper of privateness; they have been merely publishing images and biographies of newsworthy public figures; and no different tort in opposition to the ball gamers had been dedicated.
Finally, the difficulty on this case was not whether or not possession of the images or title to the images was in Leaf’s hand, however whether or not Leaf had the proper to breed the images. Moreover, questions existed whether or not Leaf had the proper to manage the replica of the images as a result of they’d been beforehand revealed. Bowman summarized its argument by means of analogy: an individual who purchases a guide has the proper to learn it himself, learn it aloud to others, lend it to others, hire it to others, or promote it to others. However he doesn’t have the proper to breed it—similar to the images bought by Leaf.
Philadelphia Issues
As a result of Leaf was making shipments into territories apart from Boston, Bowman and a number of other particular person gamers, together with Warren Spahn, filed the same motion in Philadelphia (the place Bowman was based mostly) in opposition to a neighborhood dealer, Jack Bendon, and different wholesalers and retailers looking for to bar the sale and distribution of Leaf merchandise. The pleasant hometown decide issued a short lived restraining order that prohibited Leaf from promoting playing cards with its gum anyplace in america, an order that strained the bounds of enforceability.
As quickly because the Philadelphia courtroom issued the decree on Might 6, 1949, Bowman revealed statements in commerce papers reporting that the injunction had been granted in opposition to Leaf, however didn’t point out that Prepare dinner County had already denied its petition for a short lived injunction on April 1 or that this different matter was nonetheless pending in Illinois.
Regardless, this Pennsylvania ruling had no impact in Illinois and didn’t cease Leaf from persevering with to ship its All-Star Gum all around the nation.
Paschen Assertion
Paschen reviewed the proof, testimony, and briefs submitted by the events and issued his thorough Grasp’s report on August 11, 1949.
As of the date of the hearings, Leaf had used photos and biographies of 49 completely different baseball gamers in its packages of gum, 33 of which have been gamers underneath contract with Bowman, and 15 of these have been plaintiffs on this lawsuit. Leaf admitted it had no written permission from any of the baseball gamers to make use of their photos however contented that the permission was not needed as a result of the baseball gamers have been public figures and used the gamers in groups’ publicity and constituted information worth to the purchasers of the gum.
Paschen famous that pictures utilized by Leaf have been procured by way of promoting businesses and photographer Flash Wiggins, who confirmed he had no written permission from any participant to promote the images. Wiggins additionally confirmed that he had by no means talked about to any participant that the images have been for use commercially. Furthermore, the photographs had no printed restrictions on them. Lastly, there was no displaying that Leaf procured the {photograph} by fraud.
Paschen discovered there was nice battle among the many authorities as to the proper of privateness and highlighted that a number of states, together with Rhode Island, Michigan and Wisconsin, had discovered that no proper of privateness existed. Plaintiffs contended that the proper of privateness had been established in Illinois within the Blazek v. Rose resolution, however that the Court docket’s official opinion couldn’t be situated.
Finally, Paschen held the opinion that Leaf’s use of the photographs and biographies of the baseball gamers didn’t represent a violation of the legal guidelines of the State of Illinois and couldn’t be enjoined. Accordingly, he really helpful that an order be entered dismissing the trigger for lack of fairness.
The Court docket’s Decree
Deep within the throes of the offseason, Decide Frank Padden issued his written ruling on January 20, 1950, after having thought of the Grasp’s reviews. Ignoring the Grasp’s opinions, Decide Padden dominated as an alternative that Leaf “had and don’t have any proper to make use of for business or promoting functions the names and photos of public figures reminiscent of baseball gamers with out their consent.” Accordingly, Bowman was entitled to a decree of everlasting injunction and damages in opposition to defendants.
Leaf was thereby perpetually enjoined and restrained from delivery, promoting, or providing on the market to be made anywhere within the State of Illinois chewing gum containing photos of the ball gamers concerned as plaintiffs with out first acquiring the categorical consent.
In an order entered on Might 19, 1950, Decide Padden dismissed the defendant’s enchantment and a cross-appeal filed by Bowman. Accordingly, this ruling was by no means analyzed by the appellate courtroom.
Lengthy after the case had been closed, attorneys for Bowman filed a movement in August 1951 that allowed them to take away the unique contracts from the courtroom file, which presumably included the signatures of gamers reminiscent of Johnny Mize, Bob Feller, Warren Spahn, Stan Musial, Yogi Barra, Phil Rizzuto, Hank Sauer, and others. Though the order required that photostatic copies be substituted, no such copies have been discovered within the courtroom file pulled from the archives.
Bowman v. Leaf: The Aftermath
After the decisive victory for Bowman, the matter was referred again to the Grasp to award financial damages to Bowman and every of the person plaintiffs. No paperwork was discovered within the courtroom file, nevertheless, so it’s unclear whether or not this occurred and in that case, what damages might need been assessed. Regardless, Leaf thereafter settled with Bowman and agreed to withdraw from the baseball card enterprise till by way of January 1, 1951. Leaf tried in useless to work out preparations with Topps to share printing rights, however Topps was not . Leaf lastly reentered the baseball card market in 1960.
Because it pertains to the passion, the proof and admissions within the courtroom paperwork make it clear that Leaf started distributing its All-Star Gum playing cards on March 14, 1949. Accordingly, this set shouldn’t be thought of a “1948-1949” subject. Regardless of the 1948 copyright on the backs of playing cards, none of those playing cards have been issued to the general public in 1948. Furthermore, it appears probably that Bowman would have commenced authorized motion a lot earlier if Leaf had been selling or distributing the playing cards in 1948.
Additionally, though the uncut sheet of 49 playing cards was not discovered within the courtroom file, it appears logical that Leaf produced two 49-card sheets that contained the 98 playing cards issued. Primarily based on the courtroom paperwork, the second sequence was first distributed after Might 3. Though the courtroom data don’t present the identities of the gamers distributed in every sequence, the acute shortage of 49 playing cards presents the passion an informed guess. Furthermore, there may be not a good cut up between the playing cards bearing the 1948 copyright and the 1949 copyright, so it seems that not less than one sheet of Leaf playing cards was printed with a mixture of each 1948 and 1949 copyright dates on the cardboard backs.
Lastly, that Bowman included the gamers’ names on the entrance of its later-issued sequence of 1949 playing cards, suggests this was in direct response to Leaf’s playing cards and promotional supplies emphasizing that their playing cards included the gamers’ names on entrance.
Though Decide Padden’s 1950 decree discovering in favor of Bowman didn’t cite the Blazek case by identify, the unhappy saga of Franz Blazek and a pair of violin-playing conjoined twins may have performed a job in giving Bowman its desired baseball card supremacy—properly, not less than for 1950.
SOURCES/NOTES
Bowman Historical past
Bowman’s grudge in opposition to the Cubs was evident its Play Ball points 1939-1941 and its 1948 namesake subject. Not one of the 5 Cubs playing cards issued in 1940 featured energetic gamers. The Johnny Evers, Charlie Grimm, and Tony Lazzeri playing cards have been marked with “Former Main League Star” on the reverse. The Frank Likelihood was marked “Former Main League Star and Supervisor.” (Johnny Evers and Charlie Grimm might even have had the “and Supervisor” added.) The George Uhle was marked “Coach” regardless of his one-year stint as Cubs pitching coach having resulted in 1939. No Cubs have been included within the 1948 Bowman set.
Bowman didn’t have written contracts with any particular person skilled soccer gamers, however had obtained written, non-exclusive permission from the commissioner of the Nationwide Soccer League and numerous membership homeowners. Arthur Flynn, who had obtained permission for Bowman, testified that the NFL and the person groups bought numerous publicity from the product. Gross sales of the 1948 soccer sequence totaled 246,000 packing containers. Equally, Bowman didn’t have any contracts with the NBA gamers, however as an alternative Flynn had procured unique rights from the president of the Nationwide Basketball Affiliation to make use of photos of the gamers. No cash was paid for this. The inducement was publicity for the league.
Pure latex was critically restricted as a result of Japanese occupation of rubber-producing areas in Southeast Asia throughout World Battle II. The latex was wanted for the battle effort in producing tires and gasoline masks, so civilian use was strictly curtailed. This rationing was additionally largely accountable for all chewing gum producers switching to artificial gum bases post-war.
Leaf Historical past
Though some sources point out the Overland R301 set was first issued in 1936, it seems that the preliminary manufacturing order was made by Sol Leaf to the Kyrle A. Sheffer Firm on or about February 8, 1937. The correspondence confirming the deal included an preliminary $400 cost for printing plates, analysis, and art work. (Which appears to counsel that Sheffer was accountable for designing and writing the copy for every of the wrappers.) The agreed-upon price for the wrappers can be three million heaps at $.23 per thousand. The preliminary sequence was to include 48 completely different baseball gamers. A soccer sequence was produced as properly, offered from 1940 to 1942.
Buying and selling Card Database labels the R304 set “1934 Al Demaree Die Cuts” and contains no reference to Deitz Gum Firm or “Ballplayers in Motion” as indicated on the wrapper included as Reveals E1 and E2 to Leaf’s Reply. Primarily based on the gamers who seem within the set and the groups with whom every is pictured, it appears extra probably this was a 1934 subject, not a 1938 subject because the attorneys claimed in Leaf’s Reply.
Leaf’s promotional supplies didn’t point out any attribute or attribute of the gum, which helps the notion that the baseball playing cards have been the product, and the gum was a throw-in.
All proof from this case, together with Leaf’s personal admissions, unequivocally confirms that the Leaf playing cards have been first distributed in March 1949, to time availability with the opening of the 1949 season. Leaf had beforehand distributed its soccer playing cards in 1948 through the soccer season. This could put to relaxation any persevering with questions whether or not the playing cards have been distributed in 1948 and that the passion ought to merely think about this a 1949 subject.
Leaf’s technique and/or protection was not with out advantage, particularly as proper of privateness and publicity rights legislation was persevering with to develop.
Instances
Edison v. Edison Polyform Mfg. Co., 73 N.J.Eq. 136, 67 Atl. 392 (1907). Well-known inventor Thomas Edison had developed a topical medicinal meant to alleviate neuralgic ache that he referred to as “Polyform.” It was first made for private use and by no means offered to the general public. Edison offered the formulation outright for $5,000 in 1879. Following a sequence of failed makes an attempt to market the product, defendant started promoting it in bottles with a label depicting Edison and utilizing the next declare, “Edison’s Polyform. I certify that this preparation is compounded in line with the system devised and utilized by myself. Thos. A. Edison.” The courtroom granted an injunction that restrained defendant from holding out that Thomas Edison has any reference to or half within the defendant’s enterprise.
Blazek v. Rose, Cir. Ct. Prepare dinner County, Ailing. (1922),not reported however cited in Pound & Chafee, “Instances on Equitable Reduction In opposition to Defamation and Accidents to Character” 138 (1930). The file supplies for this have been misplaced, nevertheless, so all that remained of the courtroom’s ruling was what had been detailed on this reporter. Additionally, a subsequent submitting claimed the twins’ property totaled simply $400, not the $100,000 that had been beforehand reported.
O’Brien v. Pabst Gross sales Co., 124 F.2nd 161 (5th Cir. 1941). O’Brien was chosen by Grantland Rice for his 1938 Collier’s All-American Soccer Crew, so Pabst wished to make use of a photograph of O’Brien for its 1939 soccer calendar. The picture had been bought for $1 from Texas Christian College, who was suggested the picture can be used for the 1939 schedule.
Gum, Inc. v Gumakers of America, Inc., 136 F.2nd 957 (third Cir. 1943). As a part of its argument, Leaf complained that Bowman had beforehand misplaced a case by which it sought to cease a competitor from promoting the same product. In its case in opposition to Gumakers of America Inc., Bowman claimed that the cylinder of gum offered by the defendant was considerably much like its personal product. Bowman additional complained that the defendant’s commerce identify “Bubly” was too much like Bowman’s “Blony” model identify. Lastly, Bowman claimed that there was a misleading similarity within the packaging that was deliberately achieved by defendant. The courtroom discovered that rivals have been free to repeat and imitate merchandise so long as there was no patent at subject, like on this case. The trial courtroom dismissed Bowman’s case, and the ruling was affirmed upon enchantment.
Bowman Gum, Inc. v. Leaf Gum Firm, Cir. Ct. Prepare dinner County, Ailing., 49 S 3762 (1950). The courtroom file obtained by way of the Prepare dinner County Circuit Court docket archives division didn’t seem full. For instance, there have been references to a Second Amended Grasp’s Report, however no such doc was discovered. Moreover, quite a lot of reveals referenced within the pleadings, motions, and grasp’s reviews weren’t discovered. Nevertheless, Leaf’s Reply did embrace authentic playing cards and wrappers as reveals that have been stapled and taped to the doc. Lastly, along with the Charles Meek affidavit talked about above, Bowman submitted almost equivalent affidavits by James Hart, Harold Kamber, and Samuel McKnight. These have been omitted above as cumulative.
In re Topps Chewing Gum, Inc. 67 F.T.C. 744 (1965). The choice makes passing references to Leaf’s makes an attempt to associate with Topps after it misplaced this case to Bowman. Additional, the settlement settlement with Bowman restricted Leaf from producing baseball playing cards by way of January 1, 1951.
Web sites
Books/Articles
Thalia commercial, Chicago Tribune, January 26, 1922, 12.
“‘Son of Two Moms’ Needs Pay for Work,” Herald and Assessment (Decatur, Illinois), February 24, 2022, 1.
“‘Siamese Twin” Close to Dying,” Effingham (Illinois) Every day Report, March 28, 1922, 4.
“Siamese Twins’ Burial Awaits Phrase of Father,” Chicago Tribune, March 31, 1922, 17.
“Miss Leaf to Be Bride in August,” Omaha World-Herald, Might 29, 1949, 34.
Rebekah Coffman, “The Chicago Origins of Leaf Manufacturers Sweet,” December 5, 2023, https://www.chicagohistory.org/the-chicago-origins-of-leaf-brands-candy/, final accessed November 14, 2024.
Brian Kappel, re: Leaf, The Story of a Collector, a Sweet Firm, a Stack of Baseball Playing cards, and a Quest for Solutions (Self-published, 2024).
Particular Thanks
Particular due to Jason Schwartz for reviewing and fact-checking this text and providing many beneficial ideas.
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