Earlier this week, the Seventh Circuit Court of Appeals in Illinois ruled in favor of Michael Jordan, holding that a grocery store’s “congratulatory ad” is not protected speech. The Jewel Food Stores advertisement in question ran in Sports Illustrated in 2009, congratulating Michael Jordan on his induction to the Pro Basketball Hall of Fame.
While the court’s ruling gets it right, the tone of ESPN’s coverage in the link below indicates that this ruling might not be fully understood. The coverage in the article is thorough enough to allow the reader to reach his or her own conclusions, I think. And for the avoidance of doubt, here is a link to the decision itself: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D02-19/C:12-1992:J:Sykes:aut:T:fnOp:N:1292976:S:0
When the lower court ruled against Jordan, I believed the wrong decision had been reached and I was confident Jordan’s appeal would prevail.
In general, advertising falls in the realm of commercial speech. And there is quite an incentive for businesses to cozy up to a celebrity like Michael Jordan via advertising of this kind. The starting fee for an authorized association with Michael Jordan, as reported in the link below and in the above ruling, is $5 million.
I might feel differently if the grocery store had insisted on remaining completely anonymous: no use of the grocery store’s name, logo, motto, website, address or any other designations. If that was the nature of the advertisement, I might give more credence to the “congratulatory” argument. But those kinds of advertisements don’t come around very often.
BVR is a leading publisher on valuations, and I recently had an extensive discussion with BVR concerning valuations and the Right of Publicity. The resulting article itself is subscription-based, but the title of the article is New cases spotlight the value of ‘right of publicity,’ published February 19, 2014, Issue #137-3. Also see http://www.BVResources.com