Review of Game Faces

Fields, Sarah K. Game Faces: Sport Celebrity and the Laws of Reputation. Urbana, IL: University of Illinois Press, 2016. Pp. xxii+187. Notes, index. $95.00 cloth, $24.95 paper, $22.46 ebook.

Reviewed by Cat Ariail

In the fall of 2012, a lawyer representing Hulk Hogan (Terry Bollea) filed a federal invasion-of-privacy lawsuit against Gawker Media for publishing a sex-tape featuring Hogan and the wife of Tampa radio personality Bubba Clem. The ensuing, four-year litigation process, which resulted in Gawker settling with Hogan for $31 million in November 2016, raised questions about publicity, privacy, celebrity, public interest, and the free press – through the figure of a former sport superstar. Yet, for all the hullabaloo surrounding Bollea v. Gawker (2016), it represented far from the first instance in which American society has wrestled with the relationship between the First Amendment and the laws of reputation through an athlete. Sarah Fields’s excellent and engaging Game Faces: Sport Celebrity and the Laws of Reputation chronicles a half-century of litigation involving the effort of sporting figures to protect their privacy and profit from their celebrity, defending themselves against the First Amendment claims of the press, entrepreneurs, and other private institutions, which  increasingly have sought to share, as well as profit from, their lives and image,

9780252081736

University of Illinois Press, 2016.

Fields uses the stories of six sporting figures who sued to “regain control of their image” – Wally Butts, Warren Spahn, Joe Montana, Don Newcombe, Tiger Woods, and Tony Twist – to “argue that the line between celebrity and privacy is translucent and that the U.S. courts have not clearly determined how best to balance the privileges of celebrity with the price of fame,” (xviii). Fields also convincingly demonstrates that these matters exceed the boundaries of sport and celebrity. Developments since the publication of Fields’s work, particularly the proliferation of  the digital lives, identities, and data all Americans, further have underscored the importance of the unsettled complexities that her work illuminates.

In Chapter 1, “The History of Celebrity and the Laws of Reputation and Speech,” Fields helpfully and accessibly defines the legal issues and terminology relevant to her study, outlining her interpretations of sport celebrities, the First Amendment, defamation, and the right to privacy, as well as the tension between the right to privacy and the public interest. Fields then analyses Butts vs. Curtis Publishing (1967) in Chapter 2, “Lies, Libel, and Football: Coaches as Public Figures.”  The landmark case “represented the first time the US Supreme Court concluded that a sporting figure was a public figure, that a former football coach was a celebrity,” (19). In short, sporting figures became celebrities because Butts sued the Saturday Evening Post for publishing a March 1963 article titled, “The Story of a College Football Fix: How Wally Butts and Bear Bryant Rigged a Game Last Fall.” Because Butts, the former University of Georgia coach turned athletic director, was experiencing personal and financial difficulties in the early 1960s, the prospect that he conspired with Bryant to fix and then gamble on the 1962 Georgia-Alabama game proved imaginable. Yet, an all-male and all-white male jury in Atlanta ruled in favor of Butts, an indication of the support Butts enjoyed amongst public, especially the white South.

But the Post undertook multiple appeals, with the ruling in New York Times Co. v. Sullivan (1964), when the Supreme Court increased “the burden of proof for public officials suing for defamation,” giving the argument new life (33). The case between Butts and the Post eventually reached the Supreme Court, with the Court ruling in favor of Butts but failing to establish a precedence. Rather, the multiple decisions issued by the justices only served to complicate further the relationship between public figures, their reputation, and the rights of the press. Fields writes, “The divided nature of the decision meant that, as precedent, Butts v. Curtis Publishing was unreliable, and the Supreme Court would be forced to revisit the standard for libel and public figures in several cases in the upcoming years,” (37). The absence of a standard, however, resulted in sporting figures remaining central to the negotiation these issues.

A 1967 court case between Warren Spahn and Julian Messner, Inc., which published juvenile sport biographies, further muddled matters. As recounted by Fields in Chapter 3, “Stop the Press: A Baseball Legend and Biography,” Spahn, somewhat curiously, sued the publishing company for writing a biography that made him “look too good,” (43). The Warren Spahn Story, among other exaggerations, claimed the pitcher won a Bronze Star when serving in World War II. In New York, Judge Jacob Markowitz ruled in favor of Spahn, honoring a separation between his life as a celebrity and his personal life. Markowitz grounded his decision on the four-part right of privacy theory established by Dean William Prosser in 1960, which included: “the right to prevent widespread publicity concerning personal information; the right to be free from intrusions into one’s solitude; the right to control the use of one’s own name and image for commercial enterprises; and the right to be of publicity that casts one in a false light,” (48). Spahn also won multiple appeals, benefitting from New York’s strict right to privacy laws. But, once again, the ruling in New York Times Co. v. Sullivan had the potential to change the dynamics of the case. The fourth decision still favored Spahn, yet a dissent issued by Judge Francis Bergan opened the space for continued conversations about the “fictionalization” of the biographies of celebrities, suggesting that courts should consider “calculated falsehood,” (53). Likewise, subsequent debate among legal scholars has resulted in the state of New York recognizing the elusive nature of truth and the interpretative character of biographies, thereby protecting the freedoms of publishers.

Almost thirty years later, the privacy protestations of Joe Montana would prove less effective than those of Spahn. The juxtaposition of theses cases highlights the trajectory between privacy, publicity, and the press, with the interpretations of laws increasingly favoring the freedoms of the press to publicize, and even profit from, an athlete’s exploits and image in the name of the public interest. In Chapter 4, “Super Icon of Marketing Tool?,” Fields analyses the legendary San Francisco Forty-Niners’ quarterback’s suit against the San Jose Mercury News, which sold commemorative posters of the quarterback after he led the squad to their fourth Super Bowl title in 1990. Montana’s case captures the complexities and contradictions of modern sport celebrity. Montana very much benefited from his celebrity, and the media’s role in making it, but he sought to determine these dynamics according to his privacy and promotional preferences. Multiple courts dismissed Montana’s case on the grounds that football, especially a Super Bowl victory, was in the public interest and, therefore, the photographs of Montana featured in the Mercury News’s poster were newsworthy, meaning their use of Montana’s likeness did not infringe on his right to publicity. But, as Fields asserts, “The Montana case is problematic,” because it “failed to distinguish between marketing and newsworthiness,” (74).

Future lawsuits involving athlete image presented an opportunity to make this distinction. In Chapter 5, “Owning a Farce: Publicity and Advertising,” Fields explores Don Newcombe’s suit against Coors Brewing for using an image that highly resembled his likeness to sell Killian’s Irish Red. Yet, Newcombe, like Spahn before him, approached the case from a somewhat curious perspective. After struggling with alcoholism during his career as a star pitcher in the Major Leagues, Newcombe became sober in 1966 and devoted his life to advocacy surrounding alcoholism. Because of his experiences, he found Coors’s apparent appropriation of his image particularly appalling. Fields situates Newcombe suit within a longer genealogy of cases that had expanded the ability of athletes to control their image. However, because Coors did not explicitly identify the figure advertising Killian’s Irish Red as Newcombe, it raised different complexities. After a U.S. District Court dismissed Newcombe’s case, insisting whether or not the image was Newcombe was irrelevant because associating an image that resembled him with an alcoholic beverage would not damage his reputation in the eyes of most people, Newcombe appealed to Judge Proctor J. Hug of the Ninth Circuit Court of Appeals in New York, who ruled that Newcombe had the right to a trial. A record a trial does not exist, suggesting a settlement was reached. Nonetheless, the Newcombe cases illustrates the differences between commercial speech, when an athlete’s image is used to sell a product, and communicative speech, when an athlete and their image is in the press because of newsworthiness.

The efforts of companies and artists to use the image of newly-minted Masters’ champion Tiger Woods illuminates the importance of the purpose of speech, as Fields demonstrates in Chapter 6, “Art Versus Image: The First Amendment Versus the Right of Publicity.” Even before Woods secured his his historic green jacket in 1997, his father, agent, and other members of his team recognized his marketability and profitability, forming ETW Corporation and filing multiple patent and trademark applications that would protect Woods’s right to publicity by prohibiting the usage of “Tiger Woods” in concert with a variety of types of memorabilia. Thus, ETW took swift legal action when Franklin Mint sought to sell “Tiger Woods Eyewitness Commemorative Medal” after he won the Master’s in 1997. Franklin Mint failed to convince that their usage of Woods’s likeness was authorized under claims of communication, resulting in the company settling with the golfer.

Yet, ETW could not squash all forms of speech that involved the memorialization of Woods. Rich Rush, a notable athlete artist, produced a collection of serigraphs and lithographs of Woods without the golfer’s permission, which soon inspired a suit from ETW. A district-court judge dismissed the case, considering Rush’s products artistic rather than commercial speech. The decision affirmed that the First Amendment protected to the right of an artist to express their interpretation of an athlete and, thus, use an athlete’s image, tipping the balance away from a celebrity’s right of publicity. Fields documents the degree of mixed reactions that the decision provoked, with other celebrities and their legal teams, in particular, taking umbrage. The significance of the case, however, lies in its after effects. Smarting from his loss, Woods’s lawyer Mark S. Lee theorized the “predominate purpose test,” arguing, “If people buy a picture of Tiger Woods predominantly because they like Tiger Woods, rather than because they are attracted to the composition of the picture, that picture should be deemed to violate Tiger Woods’s right of publicity,” (118).

Lee’s legal intervention unexpectedly would aid former St. Louis Blues hockey player Tony Twist, which Fields details in Chapter 7, “What’s in a Name?: Comic Books and Hockey.” While arguably the most obscure of the athletes she analyzes, Twist’s story proves the most fascinating, with the convoluted case capturing the complex, contradictory, and continually unsettled relationship between the laws of reputation and the First Amendment. Twist engaged in a protracted legal battle with comic creator Todd MacFarlane, whose series Spawn featured a villain called Tony Twisterelli that appeared, as the noted hockey fan MacFarlane even once admitted, to be based on Twist. Twist sued for defamation and damages. The case then wound through Missouri state courts, with judges putting forth different interpretations to respond to the varying privacy and First Amendment claims of the competing parties. Eventually, Judge Stephen Limbaugh, brother of the infamous conservative shock jock, marshaled Lee’s “predominate purpose test” to rule in favor of Twist.

A member of the Missouri Supreme Court, Limbaugh rejected the standard “relatedness” or “transformative” tests for determining whether MacFarlane had used Twist’s name for expressive or commercial purposes because “the use of identity could be both expressive and commercial,” (132). The relatedness test “protected the use of a person’s name and identity in matters related to that person, such as news reports and entertainment,” while the transformative test has “protect[ed] the use of names and identities if they have been sufficiently transformed into something more than a mere likeness or imitation,” (132).  Limbaugh instead applied the “predominate purpose test” because MacFarlane used Twist’s name as, in his words, “a ploy to sell comic books,” (132). He ordered a retrial using this standard. After several more trials, where the parties involved further tweaked their arguments, a three-judge panel of the Missouri Appellate Court ruled against MacFarlane, which the Missouri Supreme Court affirmed in refusing to hear another appeal from McFarlane. The decision was unexpected, with some legal scholars speculating a chilling effect on artistic freedom. Such effects did not emerge. Nonetheless, these fears reveal the enduring lack of clarity about the difference between commercial and artistic speech, with Fields specifically citing the failure of the Supreme Court to articulate clear, consistent standards.

In her conclusion, Fields asserts, “The right of privacy has evolved from a right of  protecting one’s image and reputation to a pecuniary right of protecting the financial value of one’s image,” (139). She succeeds in demonstrating this process through her analyses of the legal challenges undertaken by six sporting figures. Yet, her final conclusions prove a bit unsatisfying. Fields closes her book by reflecting on the ways in which her research caused her to reassess her own relationship as a scholar to the identities and stories of sporting figures she studies. She recognizes “the potential irony of what I’m doing,” (146).  Fields’s considerations capture the contradictory relationship to issues of image, reputation, and identity. She then seeks to offer assurance to her readers, concluding that “we must turn to the courts and trust that they will find the right balance between the First Amendment and our individual rights of reputation,” (147).

But in a contemporary moment characterized by the weaponization of the First Amendment and increased politicization of the courts, her trust in the courts does not assuage anxieties. In particular, the interpretation of First Amendment cases by courts stacked with reactionary partisans raises concerns about the rights of litigants of minority identity categories. This possibility highlights a shortcoming of Fields work for, by considering rather powerful, only male, and mostly white sporting figures, the ways in which the rights of privacy have expanded to protect these sporting celebrities may not necessarily reflect how women, persons of color, LGBTQ persons, and persons of other minority identities will experience their rights of privacy and reputation, especially in a world where our increasingly digital identities have further destabilized the line between privacy and publicity. Nonetheless, Fields work importantly makes one aware that this sense of uncertainty should not be seen as new or unique. As evident in the stories of sporting figures, the indeterminate and inconsistent balancing between the right to privacy and the First Amendment, two of the nation’s ever-proclaimed principles, has been the American way.

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