Newcombe v. Coors: Right of Publicity

The Ninth Circuit revived Don Newcombe's misappropriation claim, holding a beer-ad drawing of a distinctive windup could be readily identifiable as him.

In Newcombe v. Adolf Coors Co., 157 F.3d 686 (9th Cir. 1998), the United States Court of Appeals for the Ninth Circuit addressed how much of a person a commercial must borrow before it appropriates his identity. The plaintiff was Don Newcombe, a Brooklyn Dodgers pitching great who won the first Cy Young Award and later became a prominent advocate against alcohol abuse after his own recovery. In February 1994, the Sports Illustrated swimsuit edition ran an advertisement for Killian’s Irish Red beer that featured a drawing of an old-time baseball scene, including a pitcher in a wind-up. The drawing was based on a newspaper photograph of Newcombe pitching in the 1949 World Series. He had not consented, was not paid, and objected all the more strongly because he was a recovering alcoholic whose public identity was tied to opposing the very product the ad promoted. The district court granted summary judgment to all defendants on all claims. The Ninth Circuit affirmed in part and reversed in part: it revived the misappropriation claims against Coors and the ad agency, holding that a jury could find the drawing made Newcombe readily identifiable, but it affirmed summary judgment for Time, Inc. under the statute’s media-owner exemption and affirmed the dismissal of his defamation, false light, negligence, and emotional-distress claims.

At a glance

Case: Newcombe v. Adolf Coors Co., 157 F.3d 686 (9th Cir. 1998); defendants included Coors Brewing, the agency Foote, Cone & Belding, and Time, Inc.
Decided: September 22, 1998, affirmed in part and reversed in part; summary judgment was reversed on the misappropriation claims against Coors and Belding and affirmed on the remaining claims and as to Time, Inc.
Holding: A genuine issue of material fact existed as to whether Newcombe’s identity was used, because a reasonable jury could find the ad’s drawing of a distinctive windup and stance, plus a uniform number only slightly altered from his own, made him readily identifiable under California Civil Code section 3344 and the common law.
Significance: A leading articulation of the “readily identifiable” standard, confirming that identity can be appropriated through distinctive attributes rather than only a name or a facial photograph.

The statutory and common-law frame

California protects identity through two overlapping regimes. Civil Code section 3344 creates a statutory cause of action for the knowing use of another’s name, voice, signature, photograph, or likeness for advertising or selling without consent. The common-law right of publicity is broader still, reaching any appropriation of the plaintiff’s identity to the defendant’s advantage. Both require, as a threshold, that the plaintiff actually be identifiable from the use. Section 3344 makes this explicit through the concept of a “readily identifiable” person: someone whom a viewer, seeing the depiction with the naked eye, can reasonably determine to be the plaintiff.

The doctrinal lineage matters. In Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974), the court held that a race-car driver stated a claim where an ad showed his distinctively marked car, even though his face was not visible, because the markings made him identifiable. Newcombe sits squarely in that tradition, extending the same logic to an athlete’s physical form. The question was not whether the ad printed Newcombe’s name or a clear photograph of his face, but whether the depiction conveyed enough of his distinctive identity that people could recognize him.

Why the drawing could identify him

The defendants argued that the pitcher in the ad was a generic figure, a stylized image of baseball’s past rather than a portrait of any real player, and that no one could reliably say it was Newcombe. The Ninth Circuit disagreed that this was resolvable on summary judgment. The drawing was based on an actual newspaper photograph of Newcombe pitching in the 1949 World Series. It reproduced his particular windup and delivery, the stance and body position that fans and observers associated with him, and the uniform number had been changed only slightly, from Newcombe’s 36 to 39, with the first digit the same and the second simply inverted. Even though his facial features were not entirely visible, the court noted evidence that his stance was unique among the pitchers in the record and that the figure’s skin tone matched his complexion. The court reasoned that a person’s identity can be conveyed by such distinctive attributes. A pitcher’s windup, like a signature or a catchphrase, can be a recognizable marker of who he is.

Because the record allowed a reasonable jury to conclude that these features made Newcombe readily identifiable, the identity element could not be decided as a matter of law for the defendants. The court reversed the summary judgment on the section 3344 claim, the common-law misappropriation claim, and the associated claim for equitable relief and constructive trust, as against Coors and Belding, sending them to trial. Time, Inc. stayed out: section 3344(f) exempts the owner of an advertising medium absent knowledge of the unauthorized use, and Newcombe had not alleged that the publisher knew. The decision did not declare that the ad definitely depicted Newcombe; it held only that reasonable jurors could so find, which is enough to defeat summary judgment.

The endorsement injury and the alcohol context

The identity holding is the doctrinal core, but the facts sharpened the stakes. Newcombe was not an indifferent bystander to beer advertising. He was a recovering alcoholic who had turned his fame toward public advocacy against alcohol abuse, serving as a spokesperson on the subject. To depict him as the smiling face of a beer ad inverted the public identity he had built. His complaint therefore paired the misappropriation theory with claims that the ad was defamatory and inflicted emotional distress, precisely because associating him with beer contradicted, and arguably mocked, his life’s public message.

Those added theories failed, however. The Ninth Circuit affirmed summary judgment against him on defamation and false light, reasoning that the defamatory meaning was not apparent from the face of the advertisement and that he had not shown special damages, and it affirmed as to negligence and intentional infliction of emotional distress as well. Only the misappropriation claims went forward.

The contrast is itself instructive. The right of publicity protects a person’s control over the commercial use of his identity, and it does so without requiring him to prove the harms that defamation and emotional-distress law demand. Using Newcombe to sell beer threatened the integrity of a persona he had deliberately shaped around sobriety, but the theory that survived was the one keyed to the unconsented use of his identity, not the one keyed to reputational injury.

What the decision settled and unsettled

Newcombe confirmed several propositions that recur in misappropriation litigation. Identity can be appropriated without a name or a facial photograph, through distinctive physical attributes and mannerisms. Basing an illustration on a real photograph does not launder the appropriation; it can strengthen the identity showing because the distinctive features carry through, and small cosmetic changes such as altering a uniform digit do not defeat it. And whether a depiction makes a plaintiff readily identifiable is typically a jury question when reasonable people could differ, which makes summary judgment for advertisers difficult in close cases.

What the opinion did not do was set a precise quantum of distinctiveness required. It held that this windup, stance, and number could suffice, without announcing how unusual a set of attributes must be, or how large the recognizing audience must be, to cross the line. Those calibrations were left to future cases and to juries applying the readily-identifiable standard to particular facts.

Open questions

How distinctive must an attribute be? The court found a pitcher’s windup and number enough to reach a jury, but gave no general threshold for when a physical trait becomes an identifying indicium rather than a generic pose.
How large must the recognizing audience be? Readily identifiable to whom? The standard presumes some audience that recognizes the plaintiff, but the opinion did not define how broad or specialized that audience must be.
Where does newsworthiness end and appropriation begin? The ad was commercial, but the decision did little to map the boundary between protected depictions of sports history and unprotected commercial exploitation of a specific athlete’s identity.

Implications for creators and businesses

Drawing from a photo does not avoid liability. Rendering a real person as an illustration can preserve the very attributes that make him identifiable, so an ad agency cannot assume that drawing rather than photographing a subject, or nudging a jersey number, clears the identity hurdle.
Distinctive attributes are protected identity. A signature windup, stance, gesture, or number can identify a person as surely as a face or a name, and using them commercially without consent invites a misappropriation claim.
Misappropriation is the easier theory. Newcombe’s defamation and emotional-distress claims failed even on these facts, while the publicity claims survived. A plaintiff offended by the association still has to meet defamation’s own elements, which the identity claim does not require.
Identifiability is usually a jury question. When reasonable viewers could recognize the plaintiff, advertisers rarely win on summary judgment, so close calls should be resolved by licensing rather than litigation.

Frequently asked questions

How could a drawing identify Don Newcombe without showing his face? The advertisement’s illustration was based on a newspaper photograph of Newcombe pitching in the 1949 World Series, and it reproduced his distinctive windup and stance. The uniform number was changed only slightly, from his 36 to 39. The Ninth Circuit held that a jury could find these features made him readily identifiable to people who knew his pitching form, even though his facial features were not entirely visible.

Why did it matter that Newcombe was a recovering alcoholic? The ad was for Killian’s Irish Red beer. Newcombe was a well-known recovering alcoholic who had devoted years to warning others about the dangers of alcohol. He argued that depicting him as endorsing beer was both an unauthorized commercial use of his identity and defamatory. The Ninth Circuit let the misappropriation claims proceed but affirmed summary judgment against him on defamation, false light, negligence, and emotional distress.

What is the ‘readily identifiable’ standard? Under California Civil Code section 3344 and common law, a plaintiff must show the defendant used his identity in a way that makes him readily identifiable, meaning that one who views the use with the naked eye can reasonably determine the person depicted is the plaintiff. Identity can be conveyed by distinctive attributes, not just a name or a photograph of the face.