Don Newcombe began his professional baseball career as a teenager with the Newark Eagles of the Negro National League in 1944. As a rookie hurler with the Brooklyn Dodgers in 1949, he quickly established himself as an ace — he was named an All-Star, started two games for the Dodgers in the World Series, and was eventually crowned Rookie of the Year. This photo taken of him during that 1949 World Series would be used as evidence in a lawsuit nearly 50 years later:
Newk last pitched in the majors in 1960 with the Cleveland Indians and spent 1961 with the Spokane Indians in the Pacific Coast League trying to resurrect his major league career. After making a single start for Japan’s Chunichi Dragons in 1962, Newcombe retired from baseball as the only player in major league history to have won the Most Valuable Player Award, the Cy Young Award, and the Rookie of the Year Award (Justin Verlander has since matched this feat). Newcombe’s playing career, however, was cut short due to military service (1952-53) and a personal battle with alcohol.
After his playing career ended, Newcombe, who drank his first beer as an eight-year-old, began to imbibe heavily. He eventually lost his New Jersey cocktail lounge to tax agents and a liquor business to bankruptcy, his wife left with their three kids, and he had to pawn a World Series ring to pay his rent. Having hit rock bottom, Newcombe embarked on the road to recovery, ultimately dedicating his life to helping others who struggled with addiction. He joined the Los Angeles Dodgers’ front office in 1970 and served as the team’s community relations director, specializing in drug and alcohol awareness programs. He additionally served as spokesman for the National Institute on Drug and Alcohol Abuse pursuant to presidential appointments by Richard Nixon, Gerald Ford, and Ronald Reagan.
Accordingly, Newcombe was sickened to discover that a beer advertisement in the February 1994 Sports Illustrated “swimsuit edition” appeared to feature his likeness. The full-page illustrated ad for Killian’s Irish Red (owned by Coors Brewing Company) showed a seemingly generic pitcher in his windup, a nondescript infielder, and a fictional ballpark. The players’ uniforms did not show a team name or logo and did not utilize the same color scheme as the 1949 Dodgers. However, “Newcombe, along with family, friends and teammates immediately recognized the pitcher featured in the advertisement as Newcombe in his playing days.” Willie Mays and Duke Snider, in particular, recognized Newcombe immediately.
Newcombe filed suit on March 10, 1994, against Coors, the advertising agency that created the ad, and Time, Inc., publisher of Sports Illustrated. He alleged that his identity had been misappropriated in violation of California statutory and common law, that the advertisement was defamatory because it portrayed him — a recovered alcoholic — as endorsing beer, that the advertisement was negligently created, and that the defendants intentionally inflicted emotional distress upon him. He sought to prevent the advertisement from future publication and asked for $100,000,000 in damages. Judge Stephen Wilson of the United States District Court for the Central District of California dismissed Newcombe’s case in 1995, holding that Newcombe could not prove any of the claims he made. Undeterred, Newcombe appealed to the 9th Circuit.
The defendants denied that the pitcher in the advertisement was a “likeness” of Newcombe, but they admitted that the illustration was based on a newspaper photograph of Newcombe from the 1949 World Series. The court noted, “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.”
Because the advertisement did not feature a photograph or any particularly distinctive facial detail, the reviewing court was tasked with determining whether the illustration was actually a “likeness” of Newcombe. “Necessarily, we must address how identifiable an image must be to constitute a likeness under the common law and [California Civil Code] § 3344. Neither the common law nor § 3344 indicate to whom or to what degree the plaintiff must be identifiable from the alleged likeness.” Using § 3344, the court held “that in order to constitute Newcombe’s likeness, the pitcher depicted in the advertisement must be readily identifiable as Newcombe.”
After comparing the advertisement and photo of Newcombe, the court found that reasonable people could disagree whether Newcombe was “readily identifiable” as the pitcher in the advertisement. The court acknowledged that the illustration was slightly different from the newspaper photograph in that the uniform number in the advertisement (“39”) was different than Newcombe’s actual number (“36”) and the color of the ball caps was reimagined. Regardless, “the drawing in the advertisement and the newspaper photograph of Newcombe upon which the drawing was based are virtually identical. The pitcher’s stance, proportions and shape are identical to the newspaper photograph of Newcombe; even the styling of the uniform is identical, right down to the wrinkles in the pants.”
The defendants argued that “stance alone cannot suffice to render a person readily identifiable, and that even if it could, the drawing of the pitcher in the advertisement was essentially generic and could have been any one of thousands of people who have taken to the pitcher’s mound to throw a baseball.” The court disagreed, however, after reviewing photographs of other pitchers in the windup position — they found none were similar to that of Newcombe. Moreover, an advertising agency representative had admitted that a different prior illustration by the same artist would have been rejected for the subject advertisement because it depicted former San Francisco Giant Juan Marichal’s distinctive high-leg-kick windup. “It may be the case that Newcombe’s stance is essentially generic, but based on the record before us, Newcombe is the only one who has such a stance.”
The court eventually found there was a genuine issue of material fact as to whether the defendants made use of Newcombe’s likeness and reversed district court’s grant of summary judgment in favor of the defendants on the common law misappropriation and Cal. Civ. Code § 3344 claims. The reviewing court held that Newcombe was not able prove his claims of defamation, negligence, and intentional infliction of emotional distress, so the district court’s granting of summary judgment as to those counts was affirmed. The case was returned to Judge Wilson for further handling.
On October 21, 1998, the parties agreed to dismiss the district court case with prejudice — most likely because defendants agreed to pay Newcombe some measure of damages (it does not appear that the amount of any possible settlement was reported in the newspapers of the time).
Perhaps even more amazing in this whole story is that the Killian’s advertisement was probably not the first time Newcombe’s likeness was used for an illustration! You be the judge as to whether the Washington Senators actually incorporated Don Newcombe as part of their primary logo from 1961 through 1971!
• Newcombe v. Adolf Coors, Co., 157 F.3d 686 (9th Cir., 1998).
• Dan Stoneking, “Highballs Put Don Newcombe’s Fastball and Career on the Rocks,” Minneapolis Star, February 26, 1981, 42.
• “Judge Dismisses ‘Newk’s’ Suit Over Beer Ad,” Indiana (Pennsylvania) Gazette, September 8, 2001, 27.
• “Court Clears Way for Newcombe to Sue,” The Record (Hackensack, New Jersey), September 23, 1998, 16.
• Civil Docket for Case #: 2:94-cv-02282-SVW-BQR, CDCA, Western Div.
1961/Primary_Logo, last visited February 25, 2019.
• https://i.redd.it/3r1yzt8l7sh21.jpg, last visited February 25, 2019.
JOHN RACANELLI is a Chicago lawyer with an insatiable interest in baseball-related litigation. When not rooting for his beloved Cubs (or working), he is probably reading a baseball book or blog, planning his next baseball trip, or enjoying downtime with his wife and family. He is probably the world’s foremost photographer of triple peanuts found at ballgames and likes to think he has one of the most complete collections of vintage handheld electronic baseball games known to exist. John is a member of the Emil Rothe (Chicago) Chapter. Check out his corner of the internet at Baseball Law Reporter.