The Superman Card Company Won the Case That Gave Athletes Ownership of Their Own Faces

The 1940 Superman cards on this index were made by a Philadelphia bubble gum firm called Gum Inc. Thirteen years later, under another name, the same company won a lawsuit that invented a piece of American law. Three years after that it no longer existed.

This is the line that runs from a comic-book tie-in to the reason every athlete can charge for the use of their face.

A penny, and three big bites

Jacob Warren Bowman, a chewing gum salesman, founded Gum Inc. in Philadelphia in 1927. Its product was Blony, and within two years it was the best-selling penny bubble gum in the country.

The pitch was size. A piece of Blony was the largest bubble gum a penny would buy, advertised as three big bites, and by 1937 it held roughly sixty per cent of American bubble gum sales.

Cards came with the gum, as they did with everybody's gum in the 1930s. Gum Inc. ran non-sport sets first, including the Horrors of War series of 288 cards, then moved into baseball with the Play Ball sets of 1939, 1940 and 1941.

And in 1940 it issued the set this index tracks: seventy-two cards of Superman, the character's first trading cards, which we have written about in the piece on why so few survive in decent condition and the one on the scarce high numbers.

The war paused it, and the name changed

Wartime paper rationing stopped card production after 1941. When the company came back in 1948 it did so as Bowman, and its baseball set that year was a hit.

By 1950 it was printing around two hundred million baseball cards a year on about a million dollars of revenue. It was, for a few years, the card company.

Its 1951 set is the one that carries the rookie cards of both Mickey Mantle and Willie Mays, which our sister site has written about in why one of those two rookies became an argument and the other never did.

In May 1951 Warren Bowman sold his interest to a company called Haelan Laboratories, which is why the lawsuit that follows carries that name rather than his.

The contracts

Bowman's advantage was paperwork. It held exclusive contracts with a large number of major league players, each granting Bowman the sole right to use that player's photograph to sell gum, and each promising not to grant the same right to any other gum maker.

Then a Brooklyn company arrived. Topps went after the same players, and signed contracts with men who were already under exclusive contract to Bowman. The court record lists twenty-six players whom both companies claimed exclusive rights to for 1953, Warren Spahn among them.

Topps's defence was ingenious and, under the law as it then stood, not obviously wrong. A person's interest in their own picture, it argued, was a right of privacy: a personal right not to have one's feelings hurt, which could not be sold to anybody. So Bowman's contracts were merely releases from liability. They could not give Bowman anything exclusive to protect, because there was nothing there to own.

The judge who named it

The Second Circuit rejected that argument in February 1953, and the opinion was written by Judge Jerome Frank.

He held that in addition to and independent of the right of privacy, a person has a right in the publicity value of their photograph: the right to grant the exclusive privilege of publishing it, and to sell that privilege on its own.

And then he gave it a name. "This right might be called a 'right of publicity.'"

His reasoning was grounded in exactly the people on those cards. Actors and ballplayers, he observed, are not wounded by seeing their faces in public. They would feel deprived if they stopped being paid for it, and that payment is only worth anything if it can be made exclusive.

Topps was forced to withdraw the infringing cards. The Supreme Court declined to hear an appeal.

And then Topps bought the winner

Winning did not save Bowman.

Topps kept signing players and kept outspending it, and the two fought over contracts through 1955. On 20 January 1956 Topps bought Bowman Gum and its player contracts for $200,000. The Bowman brand was discontinued at once.

So the company that established that a player's image was property spent the next three years having its own properties acquired, and ended by selling the contracts themselves to the defendant.

Blony carried on for years afterwards; production reportedly ended in 1972. Warren Bowman died in St Petersburg, Florida, in 1962.

The irony that took thirty years to land

Topps then did with the precedent exactly what Bowman had done.

Holding exclusive contracts with nearly every major league player, Topps kept competitors out of the baseball card market for decades. When Fleer eventually challenged that position in court, the appeals court's own opinion described the history in a single word. The landmark case on players' exclusive publicity rights, it noted, had ironically involved the same defendant, in a similar dispute over the same kind of card.

Topps lost the case that created the right, then built a monopoly on it.

Why this belongs on a non-sport index

Because the Superman cards and the lawsuit are the same company, and because the principle reaches far beyond baseball.

Every non-sport set on this index that uses a real person's face depends, one way or another, on somebody having licensed it. The actors on the 1977 Star Wars cards. Adam West and Burt Ward on the 1966 Batman photo series. The question of who owns a famous face and what they can charge for it was not settled law before 1953, and the case that settled it was brought by the firm that printed Superman.

The thing worth sitting with

A gum salesman built the best-selling penny bubble gum in America, used it to sell cards, and made Superman's first set along the way.

The company he founded then won the argument that famous people own the commercial value of their own faces, which is the foundation of an industry worth vastly more than bubble gum ever was.

And it was bought, for two hundred thousand dollars, by the company that had lost.

This index tracks all seventy-two cards of the 1940 Gum Inc. Superman set card by card and grade by grade, alongside the other 1940 Superman set most people have never heard of. You can read how we work the numbers out.

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