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Ex-Dodger’s Beer Lawsuit Renewed

September 23, 1998

SAN FRANCISCO (AP) _ A federal appeals court reinstated a lawsuit Tuesday by Don Newcombe, a former Dodgers pitcher and a recovering alcoholic, over a beer ad with a drawing based on a photo of him pitching in the World Series.

The drawing, in an ad for George Killian’s Irish Red beer in a 1994 issue of Sports Illustrated, didn’t show the pitcher’s facial features or team insignia and put number 39 on his jersey, as opposed to Newcombe’s 36. But the 9th U.S. Circuit Court of Appeals said it bore enough of a resemblance to Newcombe that a jury should decide whether his ``likeness″ had been used without permission.

A federal judge had dismissed the suit in December 1994 without a trial. Damages for unauthorized commercial use of a person’s likeness include all harm suffered by the person and any profits directly traceable to the use of the image, and can also include punitive damages.

``The harm was the humiliation and embarrassment and outrage of having for so long been a proponent of making people aware of the vagaries of alcohol abuse and drug abuse and having his likeness used to advertise an alcoholic beverage,″ said Joseph Iacopino, Newcombe’s lawyer.

It was unclear from the ruling, however, whether Newcombe could seek damages for any implication in the ad that he was endorsing beer. The court refused to reinstate his claim for libel, saying the average person seeing the ad would have been unaware of his history of alcoholism.

The court also rejected a claim of intentional infliction of emotional distress, saying the artist knew nothing about Newcombe, and the sponsors’ only intent was to evoke ``feelings of nostalgia by including an old-fashioned, and generic, baseball scene.″

``It was our position ... that there did not seem to be any significant damages,″ said Henry L. Mason III, lawyer for Coors Brewing Co., which makes Killian’s. He declined comment on the ruling, saying he had not seen it.

Newcombe is director of community relations for the Los Angeles Dodgers and specializes in drug and alcohol awareness and prevention programs. He has also been a presidentially appointed spokesman for the National Institute on Drug and Alcohol Abuse.

A veteran of baseball’s Negro leagues, he pitched for the Brooklyn Dodgers from 1949 to 1957 and also pitched for Cincinnati and Cleveland before retiring in 1960. He was a four-time All-Star and the only player ever to win Rookie of the Year, Most Valuable Player and the Cy Young Award.

The court said Coors admitted that the drawing in the Killian’s ad was based on a newspaper photo of Newcombe pitching in the 1949 World Series. Newcombe said he, his family, friends, and former players such as Willie Mays and Duke Snider immediately recognized him.

Despite Coors’ claim that the picture was a generic drawing of a pitcher, ``a jury could rationally find ... that Newcombe was readily identifiable, even though his facial features were not entirely visible,″ Chief Judge Procter Hug said in the 3-0 ruling.

He said Newcombe suffered legal harm because he ``did not consent to the use of his likeness.″

Overturning a ruling by U.S. District Judge Stephen Wilson of Los Angeles, the court allowed Newcombe to go to trial against Coors and the advertising agency Foote, Cone and Belding. The court refused to reinstate his suit against Time Inc., publisher of Sports Illustrated, saying Time got no benefit from the alleged use of his likeness.