Former major league pitcher Larry Jansen died this week at age 89.  Although he was one of the leading pitchers in the National League in the 1950’s, he has been all but forgotten by the American public.

Students of sports history primarily remember him as the winning pitcher in one of the most famous games in baseball history, the New York Giants 5-4 victory in the 1951 one-game play-off with the Brooklyn Dodgers that determined the Senior Circuit’s representative in that year’s World Series.  This was the game that featured Giants outfielder Bobby Thomson’s dramatic walk off  home run in the bottom of the ninth inning, the so-called “Shot heard ‘round the world.”  Jansen had pitched a scoreless top of the ninth for the Giants.

During his nine-year major league career, Jansen won 122 games and lost 89 with an earned run average of 3.58, solid but not exceptional totals.  However, his career began in a blaze of glory.  After winning 30 games in 1946 for the San Francisco Seals of the minor league Pacific Coast League (a feat matched only once by any professional pitcher at any level during the subsequent 63 years), Jansen was purchased by the New York Giants.  After going 21-5 as a rookie, he recorded 18, 15, and 19 wins over the next three seasons, before compiling a 23-11, 3.04 record in the Giants championship year, 1951.

What almost no one remembers is that Jansen was also the name plaintiff in an early right of publicity case that contributed to the development of personal publicity rights as a form of “property” at a time when the future of that right was quite uncertain.  But for an even more significant decision handed down the same year in the same state, historians of the right of publicity might remember Jansen’s case as one of the most significant decisions of the post-World War II era.

In the summer of 1952, a number of New York vendors were placing cardboard photographs of New York Giant baseball players in bags of popcorn and packaging them with chewing gum.  (Presumably, they were doing this with Dodger and Yankee players as well.)  This practice was separate and apart for the baseball cards that were sold that summer by the Bowman and Topps companies that were packaging the cards with chewing gum under licenses obtained from major league players.

On August 14, 1952, with their team sitting in second place, eight games behind their archrival Brooklyn Dodgers, Jansen and six of his teammates (Bobby Thompson, Sal Maglie, Wes Westrum, Montia Kennedy, Dave Koslo, and Bill Rigney ) obtained a show cause order from New York Supreme Court Justice Samuel M. Gold requiring the Hi Lo Packing Company, Inc. (rendered Hilo in the subsequent judicial decision) and Theatre Concessions, Inc. to show why they should not be barred from continuing their practice of placing the plaintiffs’ photographs in bags of popcorn that were sold to the public without permission from the players.

Jansen and his colleagues also demanded $50,000 in damages.  Even though Jansen had won 96 games for the Giants the previous five years, postwar major league salaries were so low that players usually had to work at regular jobs in the office season.  Jansen was no different, and each fall and winter he worked in a pharmacy in Jackson Heights, New York.  There is little doubt that the extra money would have come in handy.

As luck would have it, at the Polo Grounds the next day, Jansen blew a 2-1 lead in a game with the Boston Braves when he allowed three unearned runs in the ninth inning.  (Jansen himself and Bobby Thompson both made errors that inning.)  In fact, after he filed the lawsuit, Jansen’s career went into a tailspin.  He failed to win another game during the 1952 season and never again had a winning season in the major leagues.  (Presumably, this was just a coincidence.)

Jansen and his teammates were represented by Jonah J. Shapiro, a well-known New York sports and entertainment lawyer.  By the time the case went to trial, Harry Horowitz’s businesses Model Airplanes, Inc. and Hit Parade, Inc. had been joined as defendants, at least one of whom was packaging player photographs with chewing gum without permission from the players.

Jansen’s suit was technically not a right of publicity action—that term would not be coined until the following year.  His action was brought under Section 51 of the New York Civil Rights law which was usually characterized as the New York “privacy statute,” and which provided as follows:

Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without [such person’s] written consent …  may … sue and recover damages for any injuries sustained by reason of such use.

The defendants responded by filing a motion to dismiss on the grounds that the plaintiffs players had failed to state a cause of action, because the baseball players, as public figures, had “waived” their right to be left alone, which was, they argued, the sole purpose of the statute.  At issue were the implications of the decision of New York’s highest court, the Court of Appeals, in Gautier v. Pro-Football, 304 N.Y. 354, which had been decided on July 15, 1952, less than a month before Jansen and his teammates filed their action.

In that case, Gautier, an animal trainer, sued the Washington Redskins and others for allowing his act, performed at the half-time of an NFL game in 1948, to be televised by the ABC television network which was also broadcasting the game.  The court ruled in that case that no violation of Section 51 had occurred.  Although the court’s rationale was a bit convoluted, there was language in the opinion that seemed to suggest that professional entertainers, like animal trainers and presumably major league baseball players, waived their right to sue for invasion of privacy under Section 51 because they clearly sought out the public spotlight.

The hearing on the motion to dismiss occurred on November 14, 1952, before a Judge Cavagan.  In a brief opinion, 202 Misc. 900 (1952), Cavagan agreed with Jansen’s attorney that the Gautier decision had not ruled out actions under Section 51 when the likenesses of baseball players were clearly being used to aid in the sale of non-baseball related items.  In that regard, he found the present case similar to, and still controlled by, an earlier New York case, Lane v. Woolworth Co., 171 Misc. 66, aff’d 256 A. D. 1065 (1939), in which the actress Judy Lane had successfully argued that Section 51 prevented Woolworth’s from including her photograph without her permission in inexpensive lockets sold in its five and ten cent stores.

Judge Cavagan’s ruling was appealed by the defendants, but the ruling was affirmed by the Appellate Division of the Supreme Court slightly more than a year later, on November 17, 1953.  In a memorandum opinion, the five-judge court unanimous confirmed the decision of the lower court without further elaboration.  282 A. D. 935 (1953).

However, by the time that the appellate division issued its ruling, the United States Circuit Court of Appeal for the Second Circuit had handed down its landmark right of publicity decision in Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866 (1953), another case in which lawyer Jonas J. Shapiro served as counsel.  In Haelen, the court ruled that baseball players had not just a right of privacy under Sec. 51 but also a common law property right in their name and images.  As a result, the Haelan decision rendered the final decision in the Jansen case less significant than it might have been.  Without Haelan, Jansen’s case likely would have seemed much more important and might well have played a much more visible role in the development of the right of the publicity in its formative era.

It is also not clear if Jansen ever benefitted directly from the decision in his case.  By the time the final decision was handed down, he was pretty much finished as a pitcher.  In 1954, he pitched in only 13 games for the Giants (after averaging 39 games per season the previous seven years), and on July 12, 1954, he was unceremoniously released by the Giants and had to return to the minor leagues.  It seems unlikely that anyone was going to rush to get in line to pay Larry Jansen for the right to put his photo in popcorn bags after the 1953 season.

As a case, Jansen v. Hilo Packing Company has not been completely ignored.  It has been cited in six subsequent judicial opinions, including the landmark right of publicity decisions Palmer v. Schonhorn Enterprises, Inc., 96 N. J. Super 72, 232 A.2d 458 (Ch. Div. 1967) and the recent C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced Media, L.P., 443 F. Supp. 2d 1077 (E. D. Mo. 2006).  It has also been cited in six law review articles and the Restatement 2d of Torts.

In many ways, the case of Jansen v. Hilo Packing resembles the baseball career of Larry Jansen.  At one point, it looked like both the pitcher and the case were headed for historical significance.  Instead, they both ended up as important parts of the respective historical records of major league baseball and the right of publicity, but in the end neither turned out to be of Hall of Fame caliber.