If you use the name of a famous person in your advertisement, do you need that person’s permission? What if it’s a news story instead of an advertisement? What if it’s a “congratulatory” message that seems to fall between these two? The U.S. Court of Appeals for the Seventh Circuit has just issued a ruling in favor of Michael Jordan that says a “congratulatory” message was really a type of advertisement and subject to the same restrictions. So you’d better get permission before using that celebrity’s name.
The case started in 2009 when a commemorative issue of Sports Illustrated was devoted entirely to Michael Jordan’s basketball career. Jewel Food Stores ran a full-page ad that congratulated Michael Jordan on being inducted into the Hall of Fame. The ad included a pair of “23” sneakers and showed the logo for Jewel-Osco prominently in the center of the page.
Michael Jordan sued Jewel for misappropriation of his identity for their commercial benefit (this is also called a right of publicity under many state laws). Jordan asked for $ 5 million in damages, plus punitive damages and treble damages under the Trademark Act.
The U.S. District Court sided with Jewel, saying that Jewel had a right under the First Amendment to congratulate Jordan. Last week the Seventh Circuit reversed the district court and said that the Jewel ad was commercial speech and thus was not entitled to such strong protections under the First Amendment.
In sum, the Seventh Circuit said that the ad, even if it was a “congratulatory message” was clearly intended to be a “promotional device for the advertiser” that would “exploit public affection for Jordan.” Ouch. In other words, Michael Jordan doesn’t need gratuitous promotion by a food store when use of his name or image already has tremendous commercial value.
(Notice that I did not include a photo of Michael Jordan in this post!)