Michael Jordan Is Still Getting All the Calls from Officials – A Cautionary Tale About Publicity Rights

August 24, 2014

By John C. Pickerill

When Michael Jordan was inducted into the Basketball Hall Of Fame, it was a big deal for every Chicago Bulls fan and the whole town of Chicago. It is also turning out to be a big deal in the world of publicity rights.

To commemorate Jordan’s induction into the Hall, Chicago grocery chain Jewel-Osco ran the below congratulatory ad in Sports Illustrated, which stated “Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was ‘just around the corner’ for so many years.” “Just around the corner” was the company’s slogan. Interestingly, Jewel was careful not to mention Jordan by name or use his actual image.

Michael Jordan publicity rights

Under Illinois state law, a public figure has a right to prohibit the unauthorized use of his or her identity ”(i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods or services, or (iii) for the purpose of fundraising.” Based on these rights, Jordan filed suit seeking $5 million in damages, arguing that the above ad misappropriated his identity for Jewel’s commercial benefit.

However, Jordan’s argument is not a complete slam-dunk. Not everything that emanates from a company like Jewel is considered “commercial” speech for the purposes of publicity rights. Courts have held that business entities do not lose their First Amendment rights to comment on current events and social matters, just because of their commercial nature. As a result, a company like Jewel has some leeway to reference Michael Jordan and #23, if it is not within the context of “commercial” speech.

Jewel argued the ad was “no harm, no foul” because it did not feature a product image or a direct sales message, so it was not commercial speech. An Illinois federal judge initially agreed with Jewel and found the ad to be noncommercial in nature, which would have effectively ended the dispute. Unfortunately for Jewel, Jordan appealed, and the decision was reversed by the appeals court, which held that the combination of the Jewel-Osco logo, the tagline, and the conspicuous link to Jordan were enough to classify the ad as a form of image advertising, i.e., “commercial” speech. At this point, the case will proceed in federal district court, and it appears the only remaining question is how much Jewel will have to pay Jordan for its congratulatory message. I bet John Stockton, Karl Malone and the rest of the Utah Jazz know how Jewel feels. Jordan always seems to get the calls when it counts.

In this age of social media, where it is painfully easy to clip and paste a star’s image on a company’s Facebook page or reference a celebrity in a company-sponsored tweet, this case serves as a reminder to be very careful in making any use of a famous person’s name or identity. Without specific permission, there is always risk of being on the wrong end of a publicity rights claim.

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