In September 2009, Michael Jordan was inducted into the Naismith Memorial Basketball Hall of Fame and to commemorate the event, Sports Illustrated devoted an issue to highlighting Michael Jordan's legendary career. Sports Illustrated offered Jewel-Osco supermarkets ("Jewel") a free ad in the magazine, in exchange for Jewel selling the magazines in its store.
Jewel's ad was a full-pager, placed on the inside back cover, and featured a pair of basketball shoes bearing Michael Jordan's number 23, with a congratulatory note, as well as Jewel's logo and slogan, reports the Chicago Tribune. What was meant as a congratulatory note was instead seen as a misappropriation of identity and resulted in a lawsuit, reports ESPN.
After the ad came out, Michael Jordan sued Jewel in Illinois state court claiming violations of Illinois common law of unfair competition, the Illinois Consumer Fraud and Deceptive Practices Act, the Illinois Right of Publicity Act and the Lanham Act, asking for $5 million in damages, in addition to punitive damages on the state law claims, and treble damages on the federal Lanham Act claims. Jewel removed to federal court, and moved for summary judgment arguing as a defense that the ad was non-commercial speech and was thus, constitutionally protected. The district court agreed, and Jordan appealed.
Seventh Circuit's Analysis
The Seventh Circuit had to determine whether Jewel's ad was commercial, or non-commercial, speech. Jewel argued, and the district court agreed, commercial speech is that which "makes an appeal to purchase," but the Seventh Circuit disagreed with that proposition, stating that it "makes no sense today, and we doubt that it ever did." The court reversed and remanded, noted that advertising can be general and implicit, and stated: "[b]ased on its content and context, the ad is properly classified as a form of image advertising aimed at promoting the Jewel-Osco brand."
While this is just one case, the outcome of this case can have wide-reaching ramifications for celebrities. If these types of ads are not deemed "commercial speech" then celebrities could end up endorsing products they don't agree to -- and without payment.