Michael Jordan too famous to congratulate
As a famous person you have a certain value to both your name and your face. Therefore, as a main rule, business owners and other commercial parties are not allowed to use neither name nor face of a famous person without consent, when advertising their products or branding themselves. This is a rule based on general legal principles, but the rules of trademarks also come into play, if the person in question is famous enough to have a commercial value to the use of his name.
On the other hand, the press is allowed to bring stories and photos of people, including celebrities, when it happens in connection with current events, and the freedom of speech usually goes a long way, when newspapers are trying to sell their latest issue. But where is the line? When does editorial content become advertising? A new ruling from the USA might offer some answers in the matter.
In 2009 world-famous basketball player Michael Jordan was inducted into the Basketball Hall of Fame. The induction prompted a celebratory issue of the magazine Sports Illustrated – dedicated in its entirety to Michael Jordan and his basketball career. The magazine contained – as usual – several ads, including one from the supermarket Jewel-Osco. The ad featured a pair of sneakers with the number 23 on them – the same number Michael Jordan played under during his time with The Chicago Bulls. The ad congratulated Jordan on his achievements, and showed the Jewel-Osco logo prominently in the center of the page.
Michael Jordan sued Jewel-Osco for misappropriation of his identity for their commercial benefit, asking for millions in damages. Jewel-Osco argued that the ad was protected under the First Amendment, and that the ad had no commercial content. Initially, a federal judge agreed with Jewel-Osco and found the ad to be non-commercial, as it didn’t feature a product, but in February 2014 the ruling was reversed, when the appeals judge sided with Jordan.
The court ruled that classifying this kind of ad as non-commercial would permit advertisers all over to misappropriate the identity of athletes and other celebrities with impunity, and therefore the Jewel-Osco ad must be classified as a form of image advertising aimed at promoting the Jewel-Osco brand. According to the court, the ad was trying to “exploit public affection for Jordan”, making the congratulatory message an infringement of Jordan’s name and the appertaining commercial value.
The ruling might just be the first of many, as Jordan also sued other advertisers from the magazine – including the supermarket Dominick’s, who also ran a congratulatory ad with Jordan’s name. The case will head to trial later this year.
In the meantime, the ruling on Jewel-Osco stands as an interesting perspective – not just for Jordan, but for celebrities all over. The ruling is similar to the one given by the Danish Supreme Court in 2008, when a magazine used both picture and name of handball player Karin Mortensen, following the Danish national team’s first place in the European Championship. The magazine, like Jewel-Osco, pleaded that the use was celebratory and non-commercial, but the court found the coverage to have more commercial content than editorial content, making it infringing on Karin Mortensen’s rights.
The two cases are in accordance, and it seems as though the protection of commercial value of celebrities is a general concern within the courts. We are dealing with two conflicting interests, and both need to be considered without overshadowing the other. It shall be interesting to follow the development in the future.