A Chicago area supermarket chain may have violated the law in using a pair of basketball shoes with Michael Jordan’s number on them in a 2009 magazine ad congratulating him on his induction into the Hall of Fame.
But the basketball legend will need to prove it at trial, after U.S. District Judge Gary Feinerman recently rejected Jordan's shot at attempting to end the matter quickly under summary judgment on a state law claim.
The judge also determined that if a jury ultimately finds Jewel violated Jordan's rights by not obtaining his consent, the grocer will not be allowed to argue it did so innocently and try to deflect any share of the potential liability to Time Inc., the publisher of the commemorative magazine in which the full-page advertisement appeared.
“One cannot accidentally create an ad using another’s likeness and then publish it without consent,” Feinerman wrote in a March 12 opinion that essentially cleared the way for the parties to prepare for a potential jury trial to decide the dispute later this year.
The case stems from an ad Jewel ran in a special local edition of Sports Illustrated magazine, dedicated to commemorating the induction of Jordan into the Naismith Memorial Basketball Hall of Fame in 2009.
After leading the Chicago Bulls to six NBA championships in the 1990s, Jordan, considered by many to be the greatest basketball player in history, has become an international celebrity across the globe. He recently has also become a billionaire, whose business empire is built largely upon his likeness and many elements of the image he built through decades of athletic achievements and product endorsements.
At the time of Jordan’s Hall of Fame induction, Jewel was among several local businesses to run ads for free in the commemorative magazine and also sell the edition on news racks in its stores for a time.
The ad included a pair of white basketball shoes with red trim, each emblazoned with a red “23” on the tongue. Jordan wore the number "23" on his jersey for much of his career as a member of the Bulls.
The ad further incorporates Jewel’s logo and its trademarked slogan, “Good things are just around the corner” in discussing Jordan’s accomplishments.
Shortly after the ad appeared, Jordan sued Jewel, claiming the supermarket chain had improperly used his identity and likeness without his consent to promote their brand. He also sued Dominick's over its ad and it appears that case remains pending as well.
Jewel responded by arguing its ad was protected by the First Amendment.
Initially, a federal judge sided with the retailer.
However, a panel of the U.S. Seventh Circuit Court of Appeals overturned that decision in early 2014, determining that Jewel’s ad constituted commercial speech and therefore, was not protected speech.
The case was remanded back to Chicago's federal court, where a jury is scheduled to hear the case in December to determine the “merits of Jordan’s claims.”
Following the remand, Jordan asked the court to grant him summary judgment against Jewel under the Illinois Right to Publicity Act (IRPA).
Feinerman, however, called foul on Jordan’s motion. He said Jordan failed to include any case law to support his contentions, relying instead on what he described as a faulty interpretation of the Seventh Circuit ruling.
While the judge conceded the federal appellate ruling agreed Jewel had engaged in commercial speech, he said the judges explicitly refused to extend its ruling to Jordan’s state law claims.
“Put simply, Jordan argues that because the Seventh Circuit’s opinion said what it said, Jewel’s ad has a ‘commercial purpose’ under the IRPA,” Feinerman said. “But that is precisely what the Seventh Circuit twice made clear it was not saying.”
Feinerman also used his recent ruling to grant a motion made by Sports Illustrated publisher Time Inc. for summary judgment on Jewel’s attempt to force Time to share liability for the ad, should a jury find in favor of Jordan.
Jewel had attempted to argue, while the state law forbids it from assigning some of the liability to another party for intentionally violating another’s rights, it does allow for those rules to be broken unintentionally. Thus, Jewel said it should be able to argue Time should carry some of the alleged blame.
Feinerman, however, said Jewel’s argument was “incorrect,” noting under case law, all actions of appropriating someone’s likeness without their consent is “properly classified as intentional.”
"In sum, Illinois’s right of publicity tort … is an intentional tort, and if Jewel is found to have violated the statute, it would be an intentional tortfeasor barred by settled Illinois law from imposing contribution liability on Time,” he explained.