This Jewell-Osco ad is the subject of Michael Jordan’s misappropriation of identity lawsuit.
When Michael Jordan was inducted into the Naismith Memorial Basketball Hall of Fame in 2009, Time, Inc. published a special commemorative issue of Sports Illustrated Presents. Jewel Foods, Inc., a Chicago-area supermarket chain store operator was offered advertising space in the publication in exchange for placement of the edition its approximately 175 stores. Jewel apparently thought this offer was a slam dunk and accepted, submitting a full-page ad which was placed on the inside back cover.
MJ was not as pumped with the #23 shoe-inspired message and filed a $5 million lawsuit for misappropriation of his identity for Jewel Foods’ commercial benefit.
According to the 7th Circuit Court of Appeals, the parties’ game plan and their arguments presented a straight-forward issue for them to decide: is the ad, commercial or noncommercial speech. If it is commercial (for purposes of the First Amendment) then Jordan’s lawsuit can proceed; if its noncommercial, then both sides agree that it is constitutionally protected and the case should be dismissed with Jewel Foods claiming the shut-out victory.
The District Court had already ruled against the 6-time NBA Champion and MVP, finding that the ad was noncommercial, apparently because it did not propose a particular commercial transaction. But the Court of Appeals was a friendly venue for his Airness, reversing on the basis that the congratulatory message was obviously linked to the promotion of the Jewel-Osco brand, and therefore subject to Jordan’s claims for damages.
The Court appeared to rely at least in part on the specific design of the ad, particularly the placement of the Jewel-Osco logo and trademarked slogan – “Good things are just around the corner” – which was also referred to in the message. Even Jewel’s owned copywriter thought this was “too selly.”
The court also took somewhat modest note of the economic value of Jordan the sports icon and celebrity endorser (Forbes reports that MJ earned approximately $80 million just in 2012), to stress the importance of defending publicity rights.
The case is not over yet, it will now go back to District Court for further proceedings and if necessary, a trial, but given Micheal Jordan’s history of big game performances, I’d recommend a settlement.
