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Palmer v. Schonhorn Enterprises Inc.

Decided: July 5, 1967.

ARNOLD PALMER, GARY PLAYER, DOUG SANDERS AND JACK NICKLAUS, PLAINTIFFS,
v.
SCHONHORN ENTERPRISES, INC., A NEW JERSEY CORPORATION, DEFENDANT



Horn, J.s.c.

Horn

Cross-motions for summary judgment.

Plaintiffs, well-known professional golfers and members of Professional Golfers' Association of America, seek an injunction and damages with respect to use of their names by defendant in conjunction with and as part of a game, the component parts of which are gathered in a paperboard box. The cover of the box has a large lithographic drawing of a golfer completing his swing and of a caddy holding a golf bag in the presence of spectators. The cover also bears the caption:

"PRO-AM GOLF GAME. 18 Championship holes. Profiles and playing charts of 23 famous golfers. Yardage ruler. Ball markers. Tee. Flag. Score cards. Dice. AS CHALLENGING AND EXCITING AS GOLF ITSELF."

As part of the contents of the game, on each of 23 individual sheets of paper, entitled "Profile and Playing Chart," is the name of an internationally known professional golfer or a well-known personage accompanied by a short biography or profile. Each of the profiles contains admittedly accurate facts concerning their respective professional careers. Four of these 23 sheets contain the name and profiles of plaintiffs. It is these with which we are concerned.

Plaintiffs have never given their consent to the use of their names and profiles by defendant. As a matter of fact, each of them has requested that the information and his respective name be removed from said game. Defendant has refused to do so.

It is admitted for the purpose of these motions that the use of plaintiffs' names and biographies enhance the marketability of the game and public acceptance thereof. It is also admitted that plaintiffs derive substantial portion of their respective earnings from professional golf and the marketability of their names as professional golfers for endorsement purposes in commercial ventures.

Plaintiffs contend that the use of their respective names reduces their ability to obtain satisfactory commercial affiliation

by licensing agreements, and that such use is an invasion of their privacy and an unfair exploitation and commercialization of their names and reputations.

In essence, the issue here is whether defendant, on the statement of facts detailed herein, has violated and continues to violate plaintiffs' rights of privacy.

Such right has been recognized in our State. Vanderbilt v. Mitchell, 72 N.J. Eq. 910, 14 L.R.A., N.S., 304 (E. & A. 1907); Frey v. Dixon, 141 N.J. Eq. 481 (Ch. 1948); Brex v. Smith, 104 N.J. Eq. 386 (Ch. 1929); Edison v. Edison Polyform & Mfg. Co., 73 N.J. Eq. 136 (Ch. 1907); Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481, 58 A.L.R. 2 d 626 (3 Cir. 1956); Annotation, "Right of Privacy," 138 A.L.R. 22 (1942), supplemented in 168 A.L.R. 446 (1947) and 14 A.L.R. 2 d 752 (1950).

In 77 C.J.S. Right of Privacy ยง 1, p. 397, various definitions of the right are set forth. Among these is "[t]he right to be free from the unwarranted appropriation or ...


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