## Facts

- Davey O’Brien was a nationally known college football quarterback and had received prominent public recognition for his athletic achievements.
- Pabst Sales Company distributed 35,000 “Football Calendar, 1939” calendars advertising Pabst Blue Ribbon beer.
- The calendar prominently displayed O’Brien’s football photograph alongside Pabst branding and images of beer, and included football schedules and All-America team photos.
- O’Brien did not give Pabst specific consent to use his photograph in the beer calendar and alleged embarrassment and mental anguish because of his opposition to alcohol.
- Evidence showed O’Brien had posed for photographs and authorized Texas Christian University’s publicity department to distribute his photographs and biographical information broadly to media and the public.

## Issues

1. Whether using a well-known athlete’s photograph in a beer company’s calendar advertisement, without specific consent, constitutes an actionable invasion of privacy when the athlete has voluntarily and extensively publicized his likeness.
2. Whether embarrassment or mental distress from association with a lawful product, absent falsity or defamatory implication, is sufficient to sustain a privacy claim.

## Decision

- The Fifth Circuit affirmed the district court’s directed verdict for Pabst.
- The court held O’Brien’s evidence failed to show an actionable invasion of privacy on these facts.
- The court treated the calendar as truthful, respectable advertising that did not falsely imply endorsement or beer consumption by O’Brien.
- Judge Holmes dissented.

## Legal Principles

- A person who voluntarily becomes a public figure through deliberate, widespread publicity has a reduced privacy interest in the public aspects of that persona.
- Use of a public figure’s widely disseminated, authorized publicity photograph in truthful, non-defamatory advertising is not, without more, an actionable invasion of privacy.
- Mental distress from a truthful association with lawful commercial advertising, without false implication, scandalous portrayal, or intrusion into intimate life, is generally insufficient to establish a privacy tort under the court’s analysis.

## Conclusion

The court concluded that O’Brien’s celebrity status and his prior authorization of broad publicity, combined with the calendar’s non-defamatory and non-misleading presentation, barred recovery for invasion of privacy based solely on unauthorized commercial use and claimed embarrassment.


O’Brien v. Pabst Sales Co., 124 F.2d 167 (5th Cir. 1941)