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O'Brien v. Pabst Sales Co.

124 F.2d 167 (1941)

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O'Brien v. Pabst Sales Co.

United States Court of Appeals for the Fifth Circuit
124 F.2d 167 (1941)

Facts

Davey O’Brien (plaintiff), the quarterback of Texas Christian University’s undefeated football team (TCU team), was awarded the Heisman Trophy and named to Collier Magazine’s All-American Football Team in 1938. In 1939, Pabst Blue Ribbon Beer (Pabst) (defendant) published a calendar that contained photos of members of the All-American team, including photos of O’Brien. The calendar did not contain statements implying that O’Brien drank or endorsed Pabst beer. O’Brien sued Pabst, claiming that the inclusion of his photo in the calendar invaded his right to privacy. O’Brien argued that he had not authorized Pabst’s use of his photo and the use of his photo embarrassed him because he publicly opposed the use of alcohol. At trial, O’Brien testified that he had consented to the use of his photo in numerous publications for the purposes of publicizing himself and the TCU team. O’Brien did not provide evidence that the calendar’s use of his photo implied that O’Brien drank or endorsed the beer. The district court granted a directed verdict to Pabst for two reasons: O’Brien had deliberately publicized his name and image in other publications, and O’Brien did not show that Pabst’s calendar implied that O’Brien drank or endorsed Pabst beer. O’Brien appealed.

Rule of Law

Issue

Holding and Reasoning (Hutcheson, J.)

Dissent (Holmes, J.)

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