In-Depth
Reversal cites commercial intent
Case study: Jordan v. Jewel Food Stores Inc.
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When Sports Illustrated published a commemorative issue celebrating Michael Jordan's induction into the Basketball Hall of Fame in 2009, it traded Chicago grocery chain Jewel-Osco a free full-page ad in exchange for distribution in its stores.
Jewel-Osco used the page to create a congratulatory ad, which featured a photo of Jordan’s sneakers, distinguished by his iconic No. 23. Beneath text that hailed Jordan as a “fellow Chicagoan who was ‘just around the corner’ for so many years” Jewel ran both its logo and its slogan: “Good things are just around the corner.”
Jordan sued, claiming violation of the Illinois right of publicity law.
At the center of the dispute was the degree to which the congratulatory ad was commercial speech, and thus not entitled to the same level of First Amendment protection as other speech.
The district court ruled against Jordan, finding that in order to be sufficiently commercial the ad had to propose a commercial transaction. “Readers would be at a loss to explain what they have been invited to buy,” the judge wrote.
But in 2014, a federal appeals court reversed that ruling, finding that the grocer’s ad was meant to engender “goodwill for the Jewel-Osco brand by exploiting public affection for Jordan at an auspicious moment in his career.” It also said that because the store sold groceries, it was clear what it wanted readers to buy.
“The notion that an advertisement counts as ‘commercial’ only if it makes an appeal to purchase a particular product makes no sense today,” the court wrote, “and we doubt that it ever did.”
With the case sent back to the lower court, the two parties soon settled for an undisclosed amount.
“It’s difficult now as an adviser to brands that want to do this sort of thing,” said Ahmad Nassar, a former NFL union lawyer who is now president of the NFLPA’s licensing arm, Players Inc. “When the Warriors win the NBA championship, everybody in the Bay Area wants to congratulate them, including companies. And they look at the Jewel-Osco thing and say, ‘Wait, how does this work?’ I don’t think that’s really the ideal construct. Everybody would be better served if there were more of a uniform set of ground rules.” .
