The passing of civil rights pioneer Don Newcombe has stirred many kind tributes and remembrances. In addition to his many noted accomplishments, we wanted to remember one of Newcombe’s achievements in the world of alcohol advertising – obtaining a 9th Circuit opinion calling for factual analysis of claims of likeness infringement.

The case, Newcombe v. Adolf Coors Company, involved suit over a hand drawn advertisement for Killian’s Red that ran in the February 14, 1994, issue of Sports Illustrated. The ad “was on the left half of the full-page advertisement while the right half was filled with text and a picture of a glass of beer.   The baseball scene focused on a pitcher in the windup position and the background included a single infielder and an old-fashioned outfield fence.   The players’ uniforms did not depict an actual team, and the background did not depict an actual stadium.   However, Newcombe, along with family, friends and former teammates, immediately recognized the pitcher featured in the advertisement as Newcombe in his playing days.”

As one article on the matter has noted, the ad was offensive not just on account of using Newcombe’s likeness, that of a recovering alcoholic to promote beer, but also because it was specifically addressed to “color” (presumably that of the Killian’s “red” variety) while failing to acknowledge that the ad is based off of the “second African-American to play for the Brooklyn Dodgers.”

“Newcombe filed suit in California state court on March 10, 1994, alleging that his identity had been misappropriated in violation of California statutory and common law, … [i]n his complaint, Newcombe named Coors, Foote Cone & Belding Advertising … (the creator of the ad). … While denying that the pitcher in the advertisement was a ‘likeness’ of Newcombe, Coors admitted that the drawing in the color advertisement was based on a newspaper photograph of Newcombe pitching in the 1949 World Series.” As the Court noted in its opinion, “[t]he drawing and the newspaper photograph are virtually identical, as though the black and white newspaper photo had been traced and colored in.   The only major differences between the newspaper photograph of Newcombe and the drawing of him are that the pitcher’s uniform number has been changed from ‘36’ to ‘39,’ and the bill of the hat in the drawing is a different color from the rest of the hat.   Otherwise, the drawing in the advertisement appears to be an exact replica of the newspaper photograph of Newcombe.”

Here’s the ad from Sports Illustrated (apologies, but we couldn’t locate the exact picture it was based off of. If anyone can locate that and send it over, we’d be happy to show a side-by-side comparison):

Killian’s Red Ad from Sport’s Illustrated February 14 1994

The district court granted summary judgment against Newcombe and he appealed and won the right to have a trial over whether Coors had used his likeness in the advertisement. In rendering its opinion, the appellate court advanced the law by adopting a standard for determining whether a “likeness” as opposed to a photograph, was used. The court noted that “[i]n assessing whether summary judgment against Newcombe was appropriate with respect to both his common law and statutory claims, we must first decide whether Newcombe’s likeness was actually used.   Necessarily, we must address how identifiable an image must be to constitute a likeness under the common law and section 3344.3  Neither the common law nor section 3344 indicate to whom or to what degree the plaintiff must be identifiable from the alleged likeness.

 We find a useful definition in section 3344 itself.  Section 3344(b) states that a photograph must be “readily identifiable” as the plaintiff in order for the plaintiff to prevail.   A person is deemed to be readily identifiable from a photograph “when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.”   Cal. Civ.Code § 3344(b)(1).   Because a likeness and a photograph are so similar-a photograph is a visual image that is obtained by using a camera while a likeness is a visual image of a person other than a photograph-we find application of this standard appropriate to likenesses as well as photographs.   Therefore, we hold that in order to constitute Newcombe’s likeness, the pitcher depicted in the advertisement must be readily identifiable as Newcombe.

The Court then went on to analyze the facts under this standard and, not surprisingly, found that Newcombe should not have suffered summary judgment as the elements of the advertisement as well as the facts of the matter, including, the uniqueness of Newcombe’s stance, the similarity of the numbers, the color of Newcombe’s skin, the fact that an employee of the advertising agency had rejected another pitcher’s picture because his stance was too unique and readily identifiable, all favored letting a jury determine whether this likeness was identifiable as one of Newcombe and therefore a breach of his common law right to privacy and his statutory right of publicity.

A man of many firsts, Newcombe’s case advanced the legal precedent allowing celebrities and athletes to control their images.