## Facts

- Babe Ruth was a famous baseball player whose name and image were widely used commercially during his lifetime.
- After Ruth’s death, his daughters registered the word mark “Babe Ruth” for certain paper goods (playing cards, writing paper, and envelopes) and licensed related uses to Babe Ruth League, Inc. and Curtis Management Group, Inc.
- MacMillan published a 1988 baseball engagement calendar featuring historical baseball photographs and captions.
- The calendar included three Ruth-related images: Ruth helping a boy with batting grip, Ruth saluting General John Pershing, and a baseball autographed by Ruth.
- Plaintiffs did not provide the photographs and did not consent to their use.
- Plaintiffs sued alleging Lanham Act trademark infringement, unfair competition, and state-law claims including a right-of-publicity theory.
- The district court granted summary judgment for MacMillan on the Lanham Act and unfair-competition claims and dismissed the remaining claims; plaintiffs appealed.

## Issues

1. Whether MacMillan’s inclusion of Babe Ruth’s name and photographs in a historically themed calendar constituted “trademark use” of plaintiffs’ registered “Babe Ruth” mark.
2. Whether MacMillan’s uses created a likelihood of consumer confusion as to source, sponsorship, or affiliation under the Lanham Act and related unfair-competition theories.
3. Whether New York law recognizes a post-mortem, descendible right of publicity in a deceased person’s name or likeness enforceable by heirs.

## Decision

- The Second Circuit affirmed.
- MacMillan’s use of Ruth’s name and photographs functioned as historical/descriptive content, not as a designation of source, and therefore was not actionable trademark use.
- Plaintiffs failed to show a likelihood of consumer confusion regarding who produced, sponsored, or endorsed the calendar.
- New York’s privacy/publicity protection is statutory and limited to living persons; it did not survive Ruth’s death, so heirs could not assert a post-mortem publicity claim.

## Legal Principles

- Lanham Act liability requires use of a mark “as a mark,” meaning use that identifies the source or origin of goods; descriptive or historical reference to a person depicted in an expressive or informational work is not, by itself, trademark use.
- A trademark registration protects the mark as registered and for the goods/services specified; registration of a word mark does not confer trademark rights in unregistered photographs or likenesses.
- Trademark infringement and unfair competition require a likelihood of consumer confusion as to source, sponsorship, or affiliation; contextual captioning and content-based references that do not signal endorsement generally do not satisfy this element.
- Under New York Civil Rights Law §§ 50–51, privacy/publicity rights are statutory, apply to living persons, and are not descendible absent legislation creating a post-mortem right.

## Conclusion

The court held that a publisher’s use of Babe Ruth’s name and images in a historical baseball calendar was non-source-identifying content that did not confuse consumers, and that New York law provided no post-mortem right of publicity for Ruth’s heirs to enforce.


Pirone v. MacMillan, Inc., 894 F.2d 579 (2d Cir. 1990)