Michael Jordan successfully won reversal of a lower court decision dismissing his right of publicity claim against Jewel Food Stores, permitting his claim to move forward. It's not like winning the championship game, but it does make Mr. Jordan the favorite as he continues this fight.
In 2009, Jewel placed an advertisement congratulating Jordan in a special issue of Sports Illustrated commemorating Michael Jordan's induction to the Basketball Hall of Fame. The ad (depicted below) featured a pair of Chicago Bulls-colored sneakers displaying Jordan's number, 23, below some congratulatory ad copy that included Jewel's "just around the corner" slogan and the Jewel-Osco logo. Specifically, the copy read "Jewel–Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was 'just around the corner' for so many years."
Jordan brought suit in the Northern District of Illinois, but lost on Summary Judgment because the lower court found that Jewel's advertisement was not actually an advertisement at all. According to the district court, this was because the ad did not attempt to sell any specific product. As a result, the speech at issue was deemed non-commercial and entitled to full First Amendment protection, which served to dispose of Jordan's right of publicity claim.
The Seventh Circuit, however, reversed the decision, finding that the ad was "image advertising, aimed at promoting good will for the Jewel-Osco brand by exploiting public affection for Jordan at an auspicious moment in his career." Thus, the speech was commercial and could not appropriate Jordan's image without authorization. Mr. Jordan's claim was remanded to the district court to permit him to go to trial to prove his damages.
This case comes as a blow to not only Jewel, but any commercial entity who may wish to speak freely about current events, even when those events involve celebrities. The district court opinion was one of the better cases available for giving commercial entities some space to "speak" about celebrities without being subject to a celebrity's right of publicity claim. This case demonstrates the risk that if a commercial entity even mentions a celebrity, athlete, or other well-known person in any media, even paying a compliment to a legend like Mr. Jordan, the company may incur a right of publicity lawsuit. Accordingly, advertisers need to be very careful about making any mention of celebrities.
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