Appeared in Summer 2012 LINKS
“Order, Order! All rise for Judge Hagan. Court Number 1 of Common Pleas is now in session.”
Which is how Law and Order fans might imagine the scene but in reality one of the more significant citizen rights decisions of the 20th century was announced quietly on June 19, 1957 in the chambers of a county courtroom in Philadelphia.
This year in which we celebrate the birth centenary of America’s greatest golfing triumvirate, Byron, Sam and Ben, is also the perfect moment to tell a very different Hogan story—a story about money and the ever-increasing oodles of it personalities earn from endorsements. But mostly the story of how golfers William B. Hogan, Francis W. Sullivan, and Peter F. Hagan changed the entire sports business world—and kept the matter a secret.
Nineteen-fifty-four was an exciting year for 41-year-old Ben Hogan. All the energy and passion he’d devoted to tournament golf was now committed to developing his equipment company.
In July, preoccupied with a costly decision to reject the entire first production run of his own-name irons, Hogan received a letter from one Dave Camerer, asking permission to publish in an upcoming book pictures taken of Hogan at the U.S. Open. In return, Camerer offered two copies of the book when published, plus a payment of $100.
Hogan’s reply was icily brief: “Are you kidding?” he wrote.
Camerer’s publisher was A.S. Barnes and the Hawk also penned a letter to the company president, urging him “not to accept for publication any material written about me or my golf swing, either from this fellow Camerer or anyone else so far as that is concerned. This goes for photographs also.”
Hogan had reason for the additional missive. A.S. Barnes & Company (unrelated to Barnes & Noble) was a long-established New York publishing house and the leading publisher of sports books, including Power Golf, by Ben Hogan.
Power Golf had been highly successful and Hogan had netted $62,950 in royalties since its 1948 publication—significant income in an era when the top prize for Tour events was between $2,000 and $3,000. Moreover, Hogan and Barnes were in early discussions on another publishing venture. A new book by the best golfer on the planet was a valuable property, so although Hogan didn’t receive a reply he considered the matter resolved.
Imagine the Wee Ice Mon’s ire next June at The Olympic Club, trying to win the U.S. Open for a record fifth time, when asked to autograph Golf With the Masters, a newly published book containing the photographs he’d refused to authorize one year earlier.
Back in Texas, after that shocking playoff defeat by unheralded Jack Fleck, Hogan reviewed his options and decided that although Barnes was his favored publisher, he had no alternative. He’d have to resolve the conflict by litigation.
In today’s age of the sports celebrity, when top athletes in every arena earn millions for play, it seems unremarkable they should also derive significant additional income from marketing their name or image. Top golfers are the most fortunate because they can keep winning for decades, in the process converting their names and faces into recognizable brands.
This extended recognition factor shows in last year’s professional golfers’ off-course earnings, where 10 high-profile names shared a total $276 million, although four who earned almost 40 percent of that total haven’t played competitive golf in a decade. Some off-course income can be directly attributed to business activities, such as golf course design, but plenty also comes from savvy commercial leverage of name endorsements.
Now imagine a land where the law denies individuals any rights over the commercial use of their name or likeness, even if used without permission to sell products or services they abhor. Yet this seemingly preposterous concept was exactly the law of these United States from the Declaration of Independence until as recently as 60 years ago. In 1791 the First Amendment to the Constitution established freedom of speech as a fundamental entitlement of all citizens, and for the next 150 years courts around the country held that an individual’s right to restrict the use of his name or image by others was trumped by that First Amendment.
This became more of an issue in the first half of the 20th century, especially in the sports world where athletes were becoming celebrities and companies realized they could use the stars’ names or images to help sell products. Lawsuits seeking to overturn the accepted interpretation were numerous and routinely denied.
One such case brought in 1935 was Hanna Mfg. vs. Hillerich & Bradsby, in which it was ruled that baseball players could not exclusively license their names to appear on baseball bats. “Fame is not merchandise” is how the judge concisely stated his reasoning for not giving ballplayers the right to profit from their names.
In 1941 famed quarterback Davey O’Brien, a teetotaler, found that he couldn’t stop his name being used to advertise beer. O’Brien submitted he had not given permission for Pabst to use his likeness, but the judge summed up the then-standard interpretation of law stating that “the publicity O’Brien got was only that which he had been constantly seeking and receiving throughout his career as a football player.”
So, the megastars of the day like Babe Ruth, Red Grange, Joe DiMaggio, Joe Louis, and Bill Tilden were unable to capitalize financially on their image.
A crack in the legal wall came in 1953, when New York State appeals court judge Jerome Frank ruled for the first time that an individual did have a personal, and thus assignable, right of own name publicity. His decision marked the first use of the term “right of publicity.” It was just one state ruling, a suit between two baseball card companies (Haelan Laboratories vs. Topps Chewing Gum) rather than an athlete directly, but it marked a turning point in the legal struggle.
There’s no telling if Hogan knew the preponderance of law stacked against him in his case against Barnes but we do know he felt wronged and determined to make his publisher aware of the fact.
When Hogan decided to take legal action, he knew where to turn for an advocate. Philadelphia lawyer Francis Sullivan was a good friend and a brilliant attorney who specialized in publishing. Sullivan had been Ben’s host when he won the 1950 U.S. Open at Merion Golf Club, the tournament that capped his comeback from terrible injuries suffered in an automobile-bus accident.
Francis Sullivan graduated from Temple University Law School in 1930 and after stints as an assistant U.S. attorney and on Franklin Roosevelt’s reelection committee, rapidly became a highly respected trial lawyer, well connected in Philadelphia society.
“A calm, serious man with a brilliant mind and superb courtroom oratory,” recalls colleague and friend Fred LaValley. John Capers III, historian at Merion, remembers Sullivan as a longtime club member who maintained a single-figure handicap well into his 70s. “A quiet, elegant, modestly understated gentleman who in dress and manner would bring to mind Ben Hogan.”
Sullivan filed suit on Hogan’s behalf for $400,000 in damages, a claim so large it forced Barnes to court against its own star author. Bringing the case in a Pennsylvania court was legally sound because Golf With the Masters was commonly on sale in that state. By early 1957 the docket had been processed into the Pennsylvania Court of Common Pleas, assigned to Judge Peter F. Hagan in a bench trial.
Judge Hagan was a legend in state legal circles, another Temple Law School graduate, class of ’23, who colleagues unanimously praised for his exceptional grasp of the finer points of law, as well as his celebrated sense of humor. Appointed to the bench in 1951, Hagan was a man similar to Sullivan and Hogan in stature and quiet demeanor, practicing law during the week, an avid golfer at then near-downtown Overbrook Golf Club when time permitted. Sullivan must have been delighted when he learned the case was to be heard by the open-minded judge who frequently amused audiences at the Caveat Club, a Philadelphia Bar Association social group, by lampooning the judiciary.
The first step for Sullivan was demonstrating that the use of photographs of Hogan’s swing was not only unauthorized but improper because the presentation made it appear Hogan had some direct part in the book’s preparation. But that alone wasn’t enough;Sullivan had to convince the judge that Hogan had a property right in the commercial value of his name and photographs.
Acutely aware of the raft of similar-style cases previously rebutted, Sullivan devised an entirely novel approach, claiming Hogan had been the victim of unfair competition. He could hardly have realized this acuity would be the naissance of undisputed precedent.
Judge Hagan rendered his verdict on June 19, 1957. In a masterful 12-page summation not only did he adjudicate for plaintiff Hogan but structured his interpretation of the law in such a manner that the decision has remained unchallenged for six decades. In summary, Hagan declared that in such circumstances “unfair competition” was the same as denying a plaintiff his “own right of publicity,” the right established in that 1953 New York State decision.
Hagan, Hogan, and Sullivan had just made history, the first case where an athlete was awarded damages based on unauthorized use of his image. Although Hogan was awarded just $5,000, in part because Golf With the Masters was a flop, Judge Hagan importantly ruled that the book’s unprofitability didn’t limit recovery of nominal damages.
The relatively small award directly benefited future litigants, because Barnes decided not to appeal. Uncontested, the Hogan vs. Barnes decision passed into Pennsylvania common law and lawyers in other states now had a much stronger platform from which to argue personality-value cases. In time 30 states would adopt various forms of legislation protecting the right of publicity. The Hogan case, tried in Pennsylvania on behalf of a Texan against a New York publisher, also set precedent for taking cases to any state where contentious material was available.
There was another reason Barnes did not appeal. Three years had passed since Camerer’s original letter and Barnes was now the publisher of Hogan’s next book. Five Lessons The Modern Fundamentals of Golf had already caused huge public interest when serialized that spring in Sports Illustrated. At the moment of Judge Hagan’s pronouncement the Barnes organization was finalizing the first run of the book that would be reprinted 64 times.
To understand the golf ramifications of this landmark decision, consider the following. By 1960, nine of ten households in America had a TV set, revolutionizing many aspects of life. Coast-to-coast advertising had come of age, offering colossal opportunities for many, including a smart 29-year-old Yale-educated lawyer named Mark McCormack. An avid low-handicap golfer, he was working in an Ohio law practice and also partnered in a business arranging professional golf exhibitions around the country.
In later life Mark McCormack recalled the idea for his International Management Group came in 1960 when “it occurred to me that if a company had a recognizable name which could be put on a new product, that product could have instant recognition, thus saving hundreds of thousands of dollars in new product education.”
An enlightenment that would lead to a rapid fortune for his first client, 30-year old Arnold Palmer, the charismatic sensation of now-televised golf tournaments, as well as subsequent clients Jack Nicklaus, Gary Player, and other sports and entertainment figures.
There is also a connector that in retrospect is remarkably obvious. As a result of Hogan vs. Barnes, settled three years earlier in nearby Pennsylvania, negotiating legally binding deals on behalf of recognizable names for the value of their images had just been considerably simplified. In the 50-plus years since, the player-management business has expanded exponentially and it’s impossible not to credit some part of this to Hogan, Hagan, and Sullivan.
While Haelan vs. Topps first established the right of publicity, the Hogan vs. Barnes case became the frequently referenced precedent in many lawsuits on behalf of athletes and celebrities. In the world of golf, Tiger Woods settled out of court for $1.6 million from a yacht-building company for using his name without authorization in sales publicity.
Gone then is the time when celebrities had no right to assign their name or likeness and the law denied relief for illicit use. Gone also our three quiet stars, who for whatever reason decided their part in legal history didn’t merit further mention during their lifetimes.
Ben Hogan left us quietly in 1997 at age 84, Francis Sullivan at age 90 in 1991. Retired Judge Peter Hagan’s passing in 1975 remains a mystery. Still active in law at age 77, the humorist author of The Egg and I was found dead, fully dressed but barefoot, after plunging to death from his 14th-floor apartment.
Hagan left behind an empty pair of slippers, and the most eloquent of legal legacies.
David Mackintosh has been the Buenos Aires Herald’s senior golf writer for three decades and is the author of Golf’s Greatest Eighteen.