Ruth’s Heirs Lose Appeal on Photos : Trademark: Court upholds ruling that rights are not violated by calendar.

A federal appeals court today upheld a lower court’s ruling that Babe Ruth’s heirs have no claim to trademark rights on photographs of the baseball legend.

The U.S. 2nd Circuit Court of Appeals ruled against claims by Ruth’s heirs that Macmillan Inc. is guilty of copyright infringement for using the baseball great’s pictures and name in “The 1988 Macmillan Baseball Engagement Calendar.”

The 1987 calendar included three photos of Ruth.

Ruth’s heirs, Dorothy Ruth Pirone and Julia Ruth Stevens, had filed suit in U.S. District Court in Manhattan claiming that the publisher’s unauthorized use of the photographs violated their trademark rights to the Ruth name.

In an 18-page decision, Appeals Court Judge Irving Kaufman said Ruth’s heirs have trademark rights solely to the words “Babe Ruth.”

He said the baseball legend’s heirs were arguing that their trademark rights include “every photograph of Ruth ever taken.”

“Ruth was one of the most photographed men of his generation, a larger-than-life hero to millions and a historical figure in whom interest still runs high,” Kaufman wrote in his decision.

“Even if (the plaintiffs) could show that it has established a trademark in a particular pictorial representation of Ruth, such a trademark would not cover all photos taken of Ruth during his career,” the decision said.

The ruling upheld a decision by Judge Pierre Leval in U.S. District Court in Manhattan, who found that there was no violation of the family’s trademark rights.

The appeals court said, “The calendar uses the name and image of Babe Ruth in every primary sense--to identify a great baseball player enshrined in the history of the game.