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Ruling in favor of Michael Jordan gets it right

February 20, 2014 19 Comments »
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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:

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.

19 thoughts on “Ruling in favor of Michael Jordan gets it right

  1. Rebecca Tushnet says:

    While I agree the defense prospects are dire, it should be noted that the court of appeals did not, as you suggest, rule that Jordan’s rights had been violated, leaving the merits for remand.

  2. jfaber says:

    Thanks for the comment, Rebecca. I appreciate the distinction concerning exactly what the Court of Appeals ruled on and I added a link to the ruling itself so readers can read the ruling directly. I’ll note, though, that there is no debate that Jordan was used in the advertisement. So rather than question whether his rights have been violated (which they clearly were once the First Amendment defense was shot down), the only real question is, what is the value of the claim?

  3. Jackie F says:

    While being congratulatory in this situation could possibly just be a congratulatory message, I think the court was right here in determining it was not. If that was the only message that Jewel-Osco wanted to send, they would have taken the offer from Sports Illustrated to congratulate Jordan anonymously. The fact that the company’s trademarks, which themselves are used commercially to foster goodwill and identify the commercial aspects of the company, were placed in a context where the company was seeming to look good to the Chicago public that admires Jordan creates an obvious sense of commercialism. The court even says this when it says “considered in context, and without rose-colored glasses, Jewel’s ad has an unmistakable commercial function: enhancing the Jewel-Osco brand in the minds of consumers.”

    I also find the comparison to congratulating a local community group interesting. The court says the difference between congratulating an athlete and a community group is that “the athlete needs no gratuitous promotion and his identity has commercial value.” I agree that the athlete may not need promotion, but I do not agree with the court that this signals a commercial intent from the company. I think that in both of these instances, a company’s sole motivation could be to simply voice its speech in support of the entity it is congratulating. I do not think that congratulating a local community group would really be implied to have a main purpose of serving as a promotional device, even if that is an incidental effect. However, the context of the Jewel trademarks in a prominent magazine and supporting one of Chicago’s most beloved athletes indicates that the overall purpose of its message is commercial in nature.

    On another note, although this case does not touch on the right of publicity claim merits, I believe the court will have to address an interesting identification issue, similar to that in the White case, because Jordan’s image does not actually appear in the advertisement. While I believe that the use of basketball shoes in Chicago Bulls colors, with the number 23, and text referencing Jordan included makes his identification undeniable, Jewel-Osco may at least be able to eliminate a statutory right of publicity claim if the IL statute would not cover such use.

  4. Sara P says:

    The court’s distinction between an ad that congratulates a celebrity and one that congratulates a local organization is interesting. While they both generate goodwill for the company, the former piggybacks on an already known identity that needs no promotion and with this the ad provides a commercial advantage for the company. Whereas, the ad for a local organization is merely an act of corporate citizenship that may have incidental commercial benefits.

    The court incorporates a contextual analysis into their decision and even jests about removing “rose-colored glasses” when deciphering the meaning and intent of the ad. It seems somewhat obvious that Jewel’s intent is commercial. While there is a clear congratulatory aspect, Jewel made certain to include their logo and to integrate Jordan’s Chicago hometown roots into the Jewel slogan. The court seems to have no difficulty in determining that this ad was, in fact, commercial speech.

    I liked that the court went on to comment on the fact that this instance demonstrates exactly the situation where a celebrity needs to have the ability to protect the use of their identity in order to prevent companies from using their image to “peddle” products. It seems like a nudge to the District Court that will hear the case on the merits.

  5. Sara P says:

    The court’s distinction between an ad that congratulates a celebrity and one that congratulates a local organization is interesting. While they both generate goodwill for the company, the former piggybacks on an already known identity that needs no promotion and with this the ad provides a commercial advantage for the company. Whereas, the ad for a local organization is merely an act of corporate citizenship that may have incidental commercial benefits.

    The court incorporates a contextual analysis into their decision and even jests about removing “rose-colored glasses” when deciphering the meaning and intent of the ad. It seems somewhat obvious that Jewel’s intent is commercial. While there is a clear congratulatory aspect, Jewel made certain to include their logo and to integrate Jordan’s Chicago hometown roots into the Jewel slogan. The court seems to have no difficulty in determining that this ad was, in fact, commercial speech.

    I liked that the court went on to comment on the fact that this instance demonstrates exactly the situation where a celebrity needs to have the ability to protect the use of their identity in order to prevent companies from using their image to “peddle” products. It seems like a nudge to the District Court that will hear the case on the merits.

  6. Audrey W says:

    The court made a very interesting point when noting that this situation needs to be considered in context and without “rose-colored glasses.” This is especially important because we sometimes see cases where defendants have obviously appropriated the goodwill of another to promote their own business, but the legal analysis gets bogged down with attempts to make that specific situation fit inside an established framework–a framework which might not suit the situation at hand. The court seems to recognize this problem here, and takes a step back to look at the advertisement at a whole. Instead of relying too heavily on a factors-based test, they simply state that from a consumer’s point of view, Jewel-Osco was obviously attempting to enhance their brand. If courts were willing to take this broad view more often and just look at the end result of an ad, I believe a lot of RoP law would be made much simpler.

    The court was correct in swiftly throwing out Jewel-Osco’s comparison to local organizations. Obviously when a charitable organization is brought into an advertisement, the organization benefits at least as much, if not more, than the business. Further, in that case the business has probably either given a donation to the organization (or the advertisement is their donation); conversely, when using a famous persona to promote a brand, no charitable organizations are helped in any way–the advertiser is simply trying to make money at the expense of the famous individual.

    Jewel-Osco’s ad was a thinly veiled attempt at profiting from Michael Jordan’s name, and the company incorrectly believed they could hide under the guise of First Amendment rights.

  7. Taryn A says:

    With regards to the context, the court goes through and thoroughly describes the advertisement. The fact that Jewel’s name and slogan are right in the middle of the ad as well as place above the Michael Jordan Shoes are two things that trouble the court. The court also notes that this ad was placed in a magazine, for free, in exchange for selling the magazine at the store. If Jewel had removed its name and slogan, and it was just a congratulations Michael ad, commercial implications would have been near impossible to prove.

    I do wonder if the result would be different if the Jewel logo and slogan were placed in the bottom corner in a smaller font. I think this would be a much harder issue to look in to. The fact that the central focus of the ad is Jewel congratulating Michael Jordan seems to be a big focus for the court, but if Jewel was not a central focus, I wonder if this would change the court’s view.

    The court reaches that congratulating a local organization is protected non-commercial speech. The court says that an ad congratulating an Athlete can only be seen as a promotional device. An ad congratulating a local community group, however, does not have commercial value. Although both are promotional, an athlete’s name and image have commercial value, whereas the community group does not. The court says that by congratulating an athlete, especially one like Michael Jordan, cannot only be seen as an act of good corporate citizenship.

    I think the distinction here is interesting, but I also agree with what the court says. A local group may not have the significant commercial value as an athlete or celebrity. By including this distinction, it prevents from every store saying congratulations for anything that a celebrity did. For example, if Beyonce wins a Grammy, stores would be able to just say “congratulations on the Grammy” with a picture of Beyonce, and their logo. The value of a celebrity’s status would be diminished significantly if this were the case.

  8. Justin K says:

    Although the court expounded at some length on the importance of context, the message seemed rather simple: USE COMMON SENSE. The court refers to Jewel’s arguments almost laughingly. To argue that the predominant reason for congratulating Jordan was not commercially motivated is ridiculous. The court mentions the test for commercial speech but reiterated that it was only a framework and that the particular facts of each such case will often be determinative. In other words, you can make all the legal arguments you want, but context and common sense will probably prevail.

    I think the real substantive difference between congratulating a celebrity versus a local organization is the issue of damages. Clearly, Jordan has a significant claim for damages as he normally would have charged a substantial licensing fee to use his image or name in an advertisement. A local organization, on the other hand, likely lacks the notoriety to license its name or image for any amount, and in fact would probably receive a public image benefit from a congratulatory ad. As such, the local organization would have no damages for which to seek recovery under a misappropriation claim.

  9. Brittany S says:

    Much like we have discussed, the Court of Appeals stressed the importance of the context in which the congratulatory advertisement was placed. The court comments that if the congratulatory text was all that appeared in the ad, then there would be a much stronger case that the ad was noncommercial speech. However, given the context that Jewel’s logo and slogan were prominently featured and the goal was to get customers to stop by their store to purchase whatever they may need overshadowed the congratulatory salute to make the ad commercial speech. This was true even though no particular product was being advertised. Also, I agree with the court that no particular product needs to be advertised in order to make an advertisement commercial speech; the context made the commercial nature apparent.

    As for the distinction between congratulating a celebrity and congratulating a local organization, it seems as though an advertiser is doing a local organization a favor (or at least is giving it a benefit) by so congratulating, while using a celebrity’s name for a “congratulatory purpose” is actually done for the purpose of benefitting the advertiser. Because fans recognize celebrities and are even willing to make purchases based on celebrity endorsements, simply using a celebrity’s name in an advertisement can be a good marketing technique, barring the possibility of a lawsuit.

  10. Bill E says:

    Although I feel that that the court is correct in recognizing the difference between an add congratulating a local community group, and an add congratulating a well known celebrity, I think the court misses the mark slightly in it’s justifications for the difference. First, I don’t feel that an add congratulating a famous person “can only be understood as a promotional device” as the court suggests. An ad can congratulate a celebrity without serving any advertising purpose whatsoever. A prime example of this would be an advertisement which makes no mention of the advertising company or it’s products. When there is no link between the celebrity, and the company then the commercial value is essentially non-existent, However in this case, Jewel’s inclusion of it’s logo and slogan clearly indicated their intent to link Jordan’s image, and specifically his affiliation with Illinois, to their brand.

    Second, the court’s focus on the inherent commercial value in a celebrity’s name is potentially misleading. The commercial value of a celebrity’s name is derived from the number of people who will potentially make a purchasing decision based on that celebrities association with a product or company. However, this is equally the case with a community group, albeit on a much smaller scale. People who feel that a community group supports a valuable cause may just as easily change their purchasing decision based on that groups affiliation with a company. Therefore, a distinction based on the commercial value does not necessarily provide a meaningful distinction.

  11. Bob G says:

    When the court states “An advertisement is no less
    “commercial” because it promotes brand awareness or loyalty rather than explicitly proposing a transaction in a specific product or service,” it reminded me of the recent advertisements for the Olympics and the salutes to Olympic athletes. The court’s reasoning that this is an advertisement works for the Olympic advertisements as well. When the local news station kept congratulating the gold medal winner from Indiana, it was obvious that the congratulations was merely an conduit for their own advertising-to attach the goodwill of the athlete to their brand. With that in mind, it is easier to see how the the Jewel-Jordan advertisement does serve two functions, as the court explains.
    While the court differentiates a local group from a famous athlete, I would argue that there are two issues at stake. For one, a famous athlete does not need free advertising like a local community group might need. The argument can be made that both groups can benefit from free advertising, but both groups should also have the right to control who advertises with their name. I disagree with the court here, but, in reality, most local community groups will probably not have the funds or desire to fight what they would probably consider to be free advertising. Second, Jewel is benefiting from the goodwill of Jordan here. But if Jewel were saluting a local group, they would be benefiting from the goodwill of that group as well. Therefore, I do not see the difference, as the court does, between using Jordan’s name as opposed to a local community group. The only difference I see is the will and means to litigate the issue.

  12. Quinn T says:

    I agree with the other responses stating that the court is kind of freestyling a judgment about the true “vibe” of the ad. As the court concludes, it’s easy to see that Jewel gained a large advantage from this ad utilizing MJ’s RoP, despite not directly advertising any product. It is commercial speech–just hiding behind the guise of goodwill.

    The distinction between MJ and the community group was interesting, and also pretty handily made. The scales immediately tip in the group’s favor in measuring who will benefit most from the ad (the ad purchaser vs the ad congratulatee). Of course, this balancing act could lead (I will spare you) to a bigger discussion of the nuances of fame and where these lines of benefit would be drawn in certain fact patterns.

    For instance, what if the community in question (in this case, the large urban area of Chicago) were smaller and/or the celebrity were only locally known. What if the celebrity had a public, non-compensatory relationship with the entity (perhaps mentioned liking the store in multiple interviews). Basically, what if the ad purchaser, while still being a commercial entity, could prove pervasive goodwill? Context, always context.

    This possibility of proving goodwill seems important to me mostly because commercial speech is still speech and does garner some protection. Likewise, commercial entities–I think–should be able to create non-commercial speech. Hopefully, this ruling did not effectively wipe out this remaining sliver of free speech opportunity.

    In this case, as Jacki pointed out, the context really prevented this argument of pervasive goodwill. World-famous athlete + national magazine = commercial speech alert. Yet, some hope remains that a good fact pattern might come along where a similar ad in a different context would be free speech rather than misappropriation. As the law continues to develop, it seems important that there be detailed precedent on both sides of this particular issue.

  13. Kyle C says:

    The Court looked at the context of the advertisement not from the standpoint of whether the ad specifically did anything to promote a product. The Court acknowledged that advertisements that exist as corporate speech are not merely messages attempting to sell a particular product, but encompasses a broader realm of marketing. In this case, the Court pointed out the goal of building brand equity. The advertisement in this particular case was not merely to congratulate Michael Jordan on his Hall of Fame induction. The Court noted that particular pieces of the add, including the Jewel logo and the ad’s overall language, showed the intent to build goodwill for the Jewel brand as a whole. Therefore advertising the brand on the shoulder’s of Jordan’s fame.
    The Court drew an interesting distinction between the past ads that congratulated a civic organization with one congratulating a celebrity. The Court recognized that the civic organization is benefited by the promotion. However, the celebrity does not need more promotion. The Celebrity already possesses the public spotlight and their image etc. is of much greater commercial value. Therefore, by congratulating a celebrity, the ad only means to piggy back upon the celebrity’s appeal and use that for Jewel’s monetary advantage. This poses the danger of damaging the celebrity’s image and is an unfair use of the celebrity’s valuable image.

  14. Justin B says:

    I like the court’s analysis of pamphlets that were distributed by a prophylactic company. Even though the company attempted to argue that these pamphlets were merely informational, it was clear from the pamphlet as a whole that the true purpose of the pamphlet was to serve as advertising. One of the key components of advertising is educating; therefore, it can at times be difficult to determine whether or not something is commercial speech or not.

    From a business point of view, this, along with its comparison of a congratulating a community organization, appears to give business at least somewhat of a roadmap of how to go about “advertising campaigns” disguised as either “congratulatory statements” or “information distribution”. I also wonder how the court would feel if a non-profit were to engage in such activity even if it could not possibly, at least directly, benefit commercially from the speech. For example, if a non-profit aimed at solely informing and encouraging the public to “buy american” were to congratulate a public figure, would the same analysis be conducted? If the organization received donations from large American companies one could see how the congratulatory statement could in fact be commercial speech. It seems however the court determines the line to be drawn, there can be some hypothetical situation in which a party, some steps removed, could create a “congratulatory statement” with a third party beneficiary.

  15. m.wells says:

    The court is quick to point out that context is vital in deciding whether or not Jewel’s speech is protected. Taking this ad through a step-by-step analysis, the court concludes, would be like trying to put a square peg in a round hole. The ad must be taken as a whole and looked at from the consumer’s point of view.

    It is obvious that Jewel’s logo on the advertisement along with their slogan right above Michael Jordan’s shoes and basketball number is an attempt to link their product to Jordan’s brand and not simply congratulate Michael Jordan.

    The court concludes that congratulating a local organization in contrast to a professional athlete is distinguishable and is non-commercial speech. In the Jordan case, it is clear that its intent was to promote the Jewel Brand by closely linking it to the Jordan brand. An ad congratulating a local high school team or a not-for-profit does not have the commercial value to the store that Michael Jordan does but conversely might actually benefit the local organization itself.

    Good will for corporate congratulations seems to end where it can be tracked to watching the bottom line for a bump in sales.

  16. Paul S says:

    I have to agree with the court on this one. The ad does congratulate Michael Jordan, but that alone does not strip it of its commercial quality. As the court pointed out, the Supreme Court has held that “advertising which links a product to a current public debate is not thereby entitled to the constitutional protection afforded noncommercial speech.” I don’t think that many people would argue that Michael Jordan being inducted to the Basketball Hall of Fame is really an issue that people are “debating,” but I think the Supreme Court’s intention is broader than that. I would interpret the statement to say that advertisers cannot hide behind the shield of Free Speech simply by snuggling up close to an issue that does receive full First Amendment Protection.
    When you look at the ad it is immediately clear that the intention was to advertise Jewel-Osco because of the context. The placement on the inside cover of a magazine (prime ad placement), the logo and slogan of Jewel-Osco, the use of the slogan in the paragraph itself. If you take the paragraph on its own (with slight alteration to remove all reference to Jewel-Osco) it reads, “A Shoe In! After six NBA championships, scores of rewritten record books and numerous buzzer beaters, Michael Jordan’s elevation in the Basketball Hall of Fame was never in doubt! [Chicago] salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was []just around the corner[] for so many years.” Out of context, the paragraph itself seems rather innocent. If Jewel-Osco’s intention had really just been to congratulate Jordan, the Ad would have read more like it does here, and Jewel-Osco would have left its logo off all together, or made it small and placed it in an unobtrusive location. But that would not have accomplished Jewel-Osco’s goal of placing its logo in context with Michael Jordan’s identity, and thereby improving its own goodwill by association.
    The court also makes a distinction between congratulating a local organization, and a sports star. It states, “Both ads will generate goodwill for the advertiser. But an ad congratulating a famous athlete can only be understood as a promotional device for the advertiser. Unlike a community group, the athlete needs no gratuitous promotion and his identity has commercial value. Jewel’s ad cannot be construed as a benevolent act of good corporate citizenship.” In general, I agree with what the court is saying. There are some implications to the statement, though that I am not sure I agree with.
    Implicit in the statement is an idea that the “gratuitous promotion” of a congratulatory ad gives a benefit to the group, but not to the athlete. I would have to disagree with that. An individual who is profiting from their own celebrity status wants to be in the lime light. So, in some ways, an athlete, like a community group gains a benefit from the attention. The difference is that the community group is not concerned with the benefit that the advertiser gains, the athlete, who is profiting from the benefit that advertisers can gain from associating with him is concerned with the benefit that the advertiser gains.
    Also implicit in the statement is that an ad which congratulates a community group is “a benevolent act of good corporate citizenship,” rather than a gratuitous promotion of the corporation itself. I just do not agree with that. I appreciate corporate sponsorship of local organizations, but corporations rarely do so out of the goodness of their fictitious hearts. Corporations sponsor, and link themselves to community groups for the same reason they link themselves to celebrities. The corporation is attempting to gain goodwill by proxy. The public has feelings of goodwill toward the group. The corporation places itself alongside the group in the public eye. The corporation then hopes that some of the goodwill the public feels for the local group will be displaced on to the corporation. All of those little league kids running around with “Bob’s Furniture Store” printed on their jerseys are little moving billboards.

  17. Brett M says:

    Using the Court’s decision as the basis, a thorough observation of the content and context of the advertisement is a foundational step when analyzing the commercial nature of it. Because Jewel-Osco’s logo was conspcuously displayed and created an ovious link between Michael Jordan an its company, words were not really necessary to determine that this was commercial speech. Jewel-Osco’s intentions were not to merely congratulate Mr. Jordan on his accomplishment, but to add value to the public’s perception of the company by utilizing the enthusiasm a bulk of their customers were feeling at the moment. The marketing slogan was the icing on the cake, and placed this ad comfortably in the realm of commercial speech which is unprotected by the 1st Amendment. Jewel-Osco infringed on Mr. Jordan’s rights when they made an agreement to stock their stores’ shelves the magazine in exchange for a high-dollar ad spot in Sports Illustrated to place an opportunistic ad with an explicit link to his success. The congratulatory message was no more than an afterthought, or way around the burgeoning flame of right of publicity law.

    I wonder if the number “23” and any other identifiable content that linked the ad to Jordan was removed from the ad, but the shoes remained, if his case against Jewel-Osco would be as strong?

  18. jfaber says:

    Good point, Jackie, about consulting the specific language of the statute.

  19. Ryan N says:

    Initially finding some of the court’s distinctions compelling, I’ve been thinking about two; the civic organization v. celebrity distinction, and the less-famous-person v. celebrity distinction. My knee-jerk reaction was that an organization with superior economic power and visibility is doing a service to a lower profile civic organization or, say, a high school player who recently won an award.

    This may be true as a general matter, but as I started exploring hypothetical examples, I can almost always think of reasons they might not want the exposure or association. A civic organization may not think Jewel pays a living wage, or they could disagree with any number of business practices that Jewel employs. It seems to me that either of the two cited “civic boosters” – Hispanocare or South Side Community Services – might want to distance themselves for such a reason, had they been asked

    And one would think that most high school basketball players would appreciate the city-wide nod. Yet, they might just be shy. They might not want the added pressure. They might want to get paid or they might not want others getting paid for their achievements. They might be of the belief that Jewel doesn’t pay a living wage.They might not want the association or publicity for any number of reasons, had they been asked.

    Of course, in these situations Jewel wouldn’t be displacing other (five million dollar) opportunities in the same way, but I think that should only be one consideration. And it certainly doesn’t mean that the use would be noncommercial.

    It seems to me now that any organization or person should have the opportunity to refuse an association, for any reason they see fit. It seems presumptuous to me to assume that these people or organizations want the publicity or the publicity via association with a certain business. Something of a droit morale reasoning, I suppose.

    As a final digressive thought, I wonder how damning the testimony of Jewel’s employees must have been. I put myself in the seat of their attorneys, and hear those phrases from the copywriter – that it was “too selly” and “hitting too over the head.” It must have felt like a punch in the gut. Similarly, having your marketing representative say it “would be good for us” and that it’s “going to help your company” must not have been what they wanted to hear. And it seems that the court was receptive to their reasoning.

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