by Jane Leavy
He put Baby Ruth’s name on circus elephants, barns, racehorses, billboards, hot-air balloons, gum, and a company hydroplane that he piloted to victory in midwestern regattas and packed with miniature candy bars attached to rice-paper parachutes, a sweet payload dropped over county fairs and picnics. “Airplanes to Drop Candy; Hog-Callers to Yodel.” These stunts became so popular that Schnering hired barnstorming pilots to carry out similar missions in some forty states. One of them took along a twelve-year-old boy named Paul Tibbets to drop candy on the Hialeah Race Track in Florida in 1927. He fell in love with flying that day. Some twenty years later he would drop the A-bomb on Hiroshima.
A graduate of the University of Chicago, Schnering strafed editorial offices with press releases: “Love of Candy Makes Huge Lion Purr Like a Pet Kitten.” “Daily Production of Baby Ruth Bars Requires Services of 4,700 Milk Cows and 45,000,000 Pounds of Peanuts.” “Special Car of Baby Ruth Candy to Leave for Pacific Coast.” Said twelve-car train loaded with 2,618,400 bars, weighing over 400,000 pounds, “if laid back-to-back would make a giant Baby Ruth bar 165 miles long.”
He solicited expert testimonials from nutritionists and physicians and secured one from the Dallas Public Schools and another, later, from the doctor who cared for the Dionne quintuplets. He declared Baby Ruth to be “rich in dextrose,” allowing him to market it as “an energy bar” and a “complete luncheon for 5¢.” Admiral Richard Byrd was said to have packed a thousand Baby Ruth bars for his expedition to the South Pole.
All this went without any apparent challenge or remark from Ruth or his representatives, a fatal delay in trademark litigation, until they rolled out the first Ruth’s Home Run bars in April 1926, which differed from the Baby Ruth bars primarily in packaging. “CAUTION: Absolutely none genuine without the photograph and official signature of ‘Babe’ Ruth himself.”
What exactly transpired between Ruth and the Curtiss Candy Company—and for that matter between Ruth and other candy manufacturers—prior to signing the agreement to create the George H. Ruth Candy Company is unclear. Who, if anyone, was in a position to challenge the Curtiss trademark in a timely manner on Ruth’s behalf is also uncertain. What is clear is the law. Or more precisely, the lack of law protecting the rights of celebrities in 1927.
V
The right to privacy, protecting against misappropriation of name and likeness, was established as a legal principle at the turn of the century. In 1902, a Rochester, New York, teenager named Abigail Roberson sued the Rochester Folding Box Company for using her picture on twenty-five thousand posters advertising “Flour of the Family”—allegedly causing such severe nervous shock that she was confined to bed. She lost the case but won the war. The New York Court of Appeals overturned the lower court by a 4–3 vote, ruling that the advertisement did not violate “a sacred right of privacy.” But the New York State Legislature overruled the court a year later and created that right, prohibiting the use of a person’s name or likeness for the purposes of advertising or trade without prior written consent.
But Babe Ruth wasn’t interested in being private. He was interested in getting paid for being public. There was no law on the books that could help him, no precedents to cite.
Two cases that came close to being on point involved newsreels, one from 1913 concerning a ship’s captain whose likeness was used in a fictionalized account of a shipwreck. The second case involved Ruth himself. In June 1920, he signed a $50,000 contract for his first feature film, Headin’ Home. He got $15,000 up front and got stiffed on the rest when the producers went belly-up. He carried the useless check around for years as a sight gag. But it was also a caution and reminder of how unprotected his interests were in matters of law.
While he was busy filming Headin’ Home in Haverstraw, New York, Educational Films was busy splicing together newsreel footage taken at the Polo Grounds to sell a series of “instructional films” entitled Babe Ruth in Over the Fence and How Babe Ruth Makes a Home Run.
Ruth sued, asking for $1 million in damages, claiming that using the footage without his consent violated his civil rights. In prepared testimony, Ruth declared his intention to “capitalize my baseball ability and reputation throughout the country as a baseball player to the utmost degree” and argued that the unsanctioned films would cause him “irreparable loss.”
The judge granted a temporary restraining order but ruled against him a month later, saying civil rights law did not apply, and that Ruth’s image and actions were newsworthy and therefore a worthy subject for the films.
The defendants celebrated their victory by countersuing for $250,000 for defamation of character and accused Ruth of legal posturing calculated to provide “the King of Swat oodles of free space, not only in the trade press, but in the dailies as well.”
Both suits were dropped when the appellate court agreed with the trial judge.
So the limitations for legal remedies should have been clear when attorneys for the George H. Ruth Candy Company challenged Curtiss in patent court, the only avenue available to them. Their case was doomed before it began, as Curtiss’s lead attorney, Victor Cutting, explained in a tart letter to Walsh, “Mr. Ruth having permitted the Curtiss Candy Company, without objection, to develop the name ‘Baby Ruth’ to its present value.”
In other words, it was Ruth’s fault for not acting sooner.
Ruth’s daughter Julia faulted Walsh for failing to trademark her father’s name. Given the astonishing sums generated by nearly a century of nickel candy bar sales, her feelings are understandable. But they also reflect a misunderstanding of federal trademark law, under which only trademarks attached to goods or services are granted protection. Without a product, a name is not a registerable trademark.
Moreover, it’s not clear that Walsh had the authority to challenge Curtiss early enough to have made a difference. In 1921, Schnering was already heavily promoting the brand; Walsh was working under a one-year contract with Ruth that pertained only to syndicated columns.
However, there is some evidence that Curtiss reached out to Ruth or to his representatives early on in the development of the product. Found among Walsh’s papers at the time of his death was a proposal for a Baby Ruth Candy Bar, signed by Walsh and Ruth, and a large mock-up of the product, according to his step-grandson Frank Merritt.
John Kenfield, a vice president of Curtiss during the formative years of the Baby Ruth bar, who later became an acclaimed tennis coach at the University of North Carolina, stated in his official university biography that he contacted Ruth about licensing his name as a new moniker for the existing Kandy Kake but that Ruth demanded more money than Curtiss could pay at the time. According to Kenfield, he then suggested Baby Ruth as an alternative name.
Joe Williams told a similar story in his obituary for Christy Walsh. “Walsh demanded a percentage of gross sales. The manufacturer decided a Baby Ruth bar would sell as well as a Babe Ruth bar. Result: Ruth and Walsh were left twiddling their thumbs.”
None of this was introduced in the case against Curtiss, which might have been embarrassing, but would have gone a long way to disproving the specious claims of honoring the memory of Baby Ruth Cleveland.
Depositions began March 4, 1927, the day after Ruth reached a new deal with the Yankees. Schnering was also in New York, giving a bravura performance on behalf of Baby Ruth, testifying that the candy bar was trademarked and introduced to the market “about the year 1919”—November 1919 to be precise. In fact, according to government records, Curtiss didn’t apply for a trademark until 1923 though the application cited 1921 as the year of first usage. Lawyers for the George H. Ruth Candy Company either did not know about those documents or chose not to submit them.
Schnering conceded there was financial value in the felicitous association with Babe Ruth but refused to posit a guess at the percentage on the grounds that Ruth wasn’t such a big deal in 1919. “Not over twenty percent?” demanded the lawyer. “Fifteen?
“Not so much,” Schnering replied.<
br />
That was Ruth’s last year with the Boston Red Sox and the first year he demonstrated his offensive prowess, leading the American League in runs (103), RBI (113), and home runs (29).
“There was a suggestion, at the time, that Babe Ruth, however not a big figure at the time as he later developed to be, might have possibilities of developing in such a way as to help our merchandising of our bar Baby Ruth,” Schnering allowed.
Cutting did not pursue that line of questioning either.
In legal terms, the case for potential damage to Otto’s baby was strong. Of particular interest to the patent court judge was Schnering’s testimony that Curtiss had spent more than $3,629,000 publicizing and developing Baby Ruth. As evidence that “Ruth’s Home Run” bar was confusingly similar to the Baby Ruth bar, Schnering cited candy wrappers he had received from young boys asking for Ruth’s autograph.
Initially, sales of Ruth’s Home Run bars were promising: $50,000 a month or more, Eckhardt, the company secretary, said in his deposition. If so, Ruth never saw anything like that. He earned five thousand from the doomed confection in 1927, the most he would ever make from it.
Three weeks after Schnering’s deposition, Walsh wrote an indignant letter to Glick in Cleveland, declaring the whole operation a “flop,” and a “piker proposition doing business on a shoe-string basis.” He complained bitterly that sales had “dwindled to a miserable mark” because of a lack of advertising. “It makes no difference whether you are selling newspaper features or candy you have GOT TO ADVERTISE.”
To which Glick replied there was no point in advertising as long as the case remained unsettled. Moreover, he added, the fate of the enterprise had been compromised from the outset by the failure of Ruth and Walsh to disclose a previous attempt to compete with Curtiss under another corporate name, Babe Ruth Candy Company. (Advertisements for a Babe Ruth candy did appear in midwestern newspapers in 1924 and 1925 prior to the development of the Ruth’s Home Run Bar.)
When Glick stopped replying to Walsh’s entreaties, he turned to his personal attorney for advice, confiding, in May, his concern that the failure of the company will be “detrimental to the commercial value of Babe Ruth’s name and reputation.”
In short: he was worried about Ruth’s brand. Still, he didn’t pull the plug. “Babe is just as disgusted as I am. While both of us are really anxious to drop the thing, still I don’t want to cut off my nose to spite my face and may be sorry afterwards.”
By June, Walsh was ready to throw in the towel, writing to ask for a cancellation of the contract. However, that became impossible when neither Glick nor Cutting replied.
In August, Walsh received a copy of the August 1927 issue of Chicago Topics magazine from a friend featuring an article titled “Otto’s Baby Ruth,” in which Schnering blithely admitted that the brainstorm for the candy bar came to him while attending a baseball game. “Why not, I thought, make a candy bar that would combine ingredients and flavors which were the favorites of the American public?” Schnering was quoted as saying. “This idea is more than a mere platitude, everyone will agree. Or else why the tremendous success of the product?”
Why, indeed?
Walsh figured he had finally gotten the goods on Otto.
“These people are certainly getting away with murder in glaring fashion,” Walsh railed in a letter to Cutting.
Incredulity was not a party to the case.
Walsh succeeded in reading a portion of the article into the record during his deposition on November 21–22, 1927. Legally, it was beside the point. On January 28, 1930, the George H. Ruth Candy Company’s request for trademark protection was denied. A notice of appeal was filed two months later. Ruth’s profits that year totaled $120.
By the time the Court of Customs and Patent Appeals upheld the original decision on May 27, 1931, denying trademark protection on the grounds that “Ruth’s Home Run” was confusingly and unfairly similar to “Baby Ruth,” the Home Run bar had disappeared from the shelves. Curtiss and all the successor ownership companies would continue to promote and profit from that confusion and the public identification with Ruth for nearly a century.
“Well, I ain’t eatin’ your damned candy bar anymore!” Ruth said.
Fourteen months after the decision, Ruth hit the Called Shot in Game 3 of the 1932 World Series at Wrigley Field. The ball landed more or less metaphorically in Otto Schnering’s backyard. In short order, Schnering mounted an illuminated “Baby Ruth” sign on the roof of an apartment building on Sheffield Avenue, just above the grandstand where Charlie Root’s pitch came to a stop. The location proved fortuitous when the Cubs began to televise their home games in the 1940s—the sign was in the line of sight of the ground-level camera behind home plate. The neon taunt remained in place until the 1970s.
“Ruth’s attorneys were never able to argue the merits of the case or enter evidence of all the ways Curtiss profited from the presumption of his participation,” explained Kevin Goering, an expert in sports litigation and the right of publicity. “This manifest injustice was a comedy of errors on the part of his lawyers, the courts and the undeveloped state of the law in 1926. The right of publicity should have been born right then.”
With the passage of the Lanham Act twenty years later, federal trademark law was expanded dramatically, prohibiting the use of trademarks like Baby Ruth that cause a likelihood of consumer confusion. “There is overwhelming evidence that the public identified the candy bar with the baseball player, not with its manufacturer,” in Goering’s opinion. “Today, Ruth would undoubtedly have been able to obtain a cancellation of Curtiss’s trademark, giving him the ability to sell his own candy bar. Even his delay in asserting his rights would probably not have been fatal. Schnering’s lack of credibility was apparent. No jury then or now would believe his tale about President Cleveland’s daughter given the timing. This evidence of bad faith would be another reason for canceling the trademark, especially under modern trademark law.”
The courts did not recognize celebrity as an exclusive property right until 1953. The ruling emerged out of an argument over baseball cards. Topps Chewing Gum, Inc., which until then had maintained complete dominion over the trading card industry, brought suit against Haelan Laboratories, Inc., parent company of the Fleer Corporation when it challenged the happy monopoly by offering major-league baseball players a better deal for the use of their names and likeness.
In his landmark ruling, Judge Jerome Frank of New York’s Second Circuit Court of Appeals not only recognized the right of publicity—acknowledging that a person’s likeness was an asset—but asserted that it was a property right that can be assigned to a third party or agent for exploitation. “It is common knowledge that many prominent persons (especially actors and ballplayers), far from having their feelings bruised through public exposure of their likeness, would feel sorely deprived if they no longer received money for authorizing advertisements,” Frank wrote, revolutionizing an entire area of law.
The decision has benefited every professional athlete and every two-bit Tinseltown celeb since. But it was too late for the Babe. His will, rewritten seven days before his death, did not designate or anticipate the importance of royalty or licensing rights, which Claire Ruth bestowed on a New Jersey Little League when she gave them permission to rename themselves the Babe Ruth League, Inc. in 1954.
That left his daughters, Dorothy and Julia, and the Babe Foundation, established in 1947, with their hands tied when the import of Judge Frank’s ruling reached the marketplace. Ten years after Claire Ruth’s death in 1976, Dorothy and Julia hired the Curtis Management Group, an Indiana company formed to protect the interests of dead celebrities, to do right by the Babe.
They cut a deal with the Babe Ruth League, giving the family two-thirds of any money generated by CMG through licensing. They registered “Babe Ruth” as a trademark for use in paper products such as writing paper, playing cards, and envelopes, and jointly sued Macmillan Publishers when three photographs of th
e Babe were used in a 1988 calendar. They lost. The Second Circuit Court of Appeals in New York ruled it wasn’t a trademark case because no consumer was likely to believe that Ruth had authorized the calendar from the grave. And there was no violation of the right of publicity because, unlike tangible property rights, this one couldn’t be inherited.
Ironically, New York State, the first jurisdiction to recognize the right of publicity, is one of the last without a right of “descendability.” The right of publicity remains an unsettled and contentious area of the law, evolving along with the technology that has extended the marketing life span of the reanimated dead, among them Babe Ruth, whose buff avatar appeared in a 2013 advertisement for Jockey briefs.
There was plenty of life left in the Babe as an endorser of authorized products, CMG found. At first the dollars were minimal but welcome, Julia told Sports Illustrated in 1995, perhaps five thousand dollars a year. Then, in a coordinated blitz calculated to take advantage of his hundredth birthday in 1995, CMG put his name on everything from beer steins to debit cards, mouse pads, nonalcoholic wine, and a talking picture frame. Julia told the magazine she received between “fifty thousand and seventy-five thousand dollars,” that year. “Just my part.”
Actually, that number is conservative, said his granddaughter Donna Analovitch. The Babe continued to generate hundreds of thousands of dollars a year for the next decade. “He’s the man who never stops giving,” she said.
After Otto Schnering’s death in 1953, the Curtiss Candy Company sold the Baby Ruth brand to Standard Brands, which sold it to Nabisco, which sold it to Nestlé, each of which continued to embrace the mythology of Baby Ruth Cleveland. As part of the big birthday celebration, however, Nestlé, which acquired the brand in 1989, licensed his name and likeness for a TV campaign that, a CMG executive said then, would make “the Babe-to-Baby Ruth bond explicit.”
But when he offered the mild observation that the Babe had strengthened Baby Ruth sales—as Schnering conceded in 1927—Nestlé cried foul. In an impassioned letter to another Chicago institution, Dear Abby, a Nestlé spokeswoman—while calling the official Baby Ruth origin story “folklore”—adamantly rejected the notion that Babe Ruth enhanced the Baby Ruth brand. Perhaps, she said, citing Nestlé’s TV commercial, Baby Ruth was “the secret weapon responsible for the Babe’s success.”