In 2009 Michael Jordan sued Jewel Food Stores among other things for appropriating his name for commercial purposes without his authorization violating his so-called right to publicity. I put the case on an exam, and recently noticed that the case is scheduled for trial in December.
Already the case stands for several important points. But, first the facts. When Michael Jordan was admitted to the Naismith Memorial Basketball Hall of Fame, Sports Illustrated put together a commemorative issue and offered Jewel Food Stores a free ad if it would display the issue in each of its 175 markets in Chicago. Jewel agreed and was given a full page ad on the inside back cover.
Jewel’s ad featured some shoes on a hardwood floor with the number 23 (Jordan’s number for most of his career – Jewel does not sell shoes). The ad said that Jordan was a Shoe In. It honored his accomplishments and congratulated “a fellow Chicagoan who was ‘just around the corner’ for so many years.” Just around the corner is Jewel’s slogan.
The lower court was prepared to dismiss the case arguing that Jewel’s speech was not commercial speech (which is considered to be lower in the hierarchy of First Amendment values than most forms of speech), but fully protected under the First Amendment. There is much to be said for this position if you accept the doctrine that corporations enjoy protection under the First Amendment. The Supreme Court has said many times that commercial speech is that speech that proposes a commercial transaction. Jewel did not mention its products. Sometimes it has said that commercial speech is solely in the economic interests of speaker and audience. Although the speech may well have been in the economic interest of Jewel, it was not solely in the economic interest of the audience.
Importantly, the Seventh Circuit Court of Appeals ruled that Jewel’s speech was commercial speech (which ordinarily is not protected against a right of publicity claim). Although Jewel did not propose a commercial transaction, Jewel’s ad was a form of institutional advertising. It was designed to increase its profits by associating its business with Michael Jordan and reminding readers that their stores permeate Chicago. There can be line drawing problems as to which corporate speech will be non-commercial because it is fair to assume that all corporate speech is designed to increase profits. Nonetheless, the decision broadening the category of commercial speech is significant.
A second aspect of the case is more common in right of publicity cases. Notice that Jordan did not sue Sports Illustrated despite its probable profit motivation in putting out the issue. Although it is possible for the media to violate the right of publicity in quite limited circumstances, this is not one of them. Generally the press gets a pass. You will sometimes read and the Court often says that the press clause has no independent significance. As Ed Baker argued, this is simply wrong, and the cases involving the right of publicity offer partial support for the view he took.
Third, it is more than a little strange that the First Amendment protects tobacco companies despite the harm they cause to the public health, but does not protect advertisers who do not make public figures richer than they already are. (Jordan is suing for $5 million).
It is hard for me to like either party in this case. It is hard to admire the cynical use of Jordan’s name by Jewel to enhance its profits (although the ad is clever). But it is also hard to admire a regime that commodifies the names of celebrities in an already voyeuristic celebrity culture and offers incentives for people like Jordan to police the use of his name in the culture. As Michael Madow once argued in a 1993 article in the California Law Review (Private Ownership of Public Image: Public Culture and Publicity Rights), the right of publicity as applied produces a regime of censorship in which celebrities police their image. For my money, in his truly great article, Madow convincingly argued that that the use of celebrity’s names is best left to the market. I believe this not as a First Amendment matter (I no longer think commercial speech should enjoy any liberty protection under the First Amendment), but because, as Madow shows, the case for the right of publicity is surprisingly weak. You have doubts. Read Madow.
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