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Michael Jordan’s lawsuit still has a shot against grocery chain



By Andrew Coffman

A Chicago based grocery chain featured an ad in a Sports Illustrated’s commemorative issue congratulating all-time great Michael Jordan on his 2009 induction into the Basketball Hall of Fame. Though the ad did not feature an image of Jordan, it clearly referenced him.  Jordan sued the grocery chain for violation of his statutory right of publicity under Illinois law.

As reported in a previous edition of Comment, the federal trial court initially sided with the grocery chain finding its speech protected by the First Amendment, but the United States Court of Appeals based in Chicago reversed that decision determining the ad had a commercial purpose under the First Amendment because it prominently featured the grocery chain’s logo and marketing slogan which were creatively and conspicuously linked to Jordan in the text of the ad’s congratulatory message. Instead of siding completely with Jordan based on the lower protections provided for commercial speech, the appellate court returned the case to the trial court for further consideration of the substance of the claims.

Jordan’s fast break fails
Back in the trial court, Jordan claimed the Court of Appeals’ decision effectively ended the case in his favor.  However, the trial court found that based on the appellate court’s ruling there were issues of fact that would have to be ultimately decided by a jury.

Thus, this case shows that even where there is a commercial purpose to invoking an individual’s identity, there still remains a fact question as to whether or not the person associating themselves with the individual has violated that individual’s right to publicity.

For now, this case leaves the lines blurry as to when an advertiser can reference a private individual without that individual’s permission.  Without more guidance from the courts, a wise advertiser will seek legal guidance before running any such ad.




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